Tuesday, October 28, 2014

It Ain't Just 'a Few Decisions', Perfesser

The Professor, Rick Esenberg, tells us that there are 'a small fraction' of judicial decisions which cause a great deal of trouble:

...it's not hard to see how, say, Judges Rudy Randa and Lynn Adelman, would come to different conclusions. One judge is suspicious of progressive designs that seek to perfect the world. The other is drawn to them. Both will understand when they have no room to maneuver, but, when they think that they do, each will reach different results.

But that recognition can lead us to a different problem - what Professor Kennedy called "lay cynicism" - and to which Mr. Miller's post also alludes. Seeing that judges sometimes decide cases based on their political preferences, the public concludes that they always do. This is not true. The public thinks it to be so because it's attention is normally directed to cases in which these philosophical differences are more or less free to express themselves. This is a small fraction of all cases

We respectfully disagree with The Prof.

Those 'few cases' include landmarks such as Dred Scott, Roe, ObamaCare (tax?  Not tax?), and gay "marriage"--(which was a non-decision decision.)  Lefties might add Citizens United, among others.  We maintain that these 'few' decisions are very serious, and it is not the number but what seems to be the defiance of common sense--dare I say "common law"?--which gives rise to cynicism.

But it ain't just "decisions."   Let's look at other events, metaphorically "obiter dicta" for you lawyer-types.

Right here in Wisconsin, we have Chisholm's Smash-and-Grab of civil rights.  And we don't have to leave this State to find even more egregious--and chilling--Government over-reach.

Shall we discuss IRS?  (Nixon's or Obama's--makes no difference.)  How about EPA?  Or Cheryl Atkisson?  How about what Snowden told us?

This is what we call "context," Professor.  And it's why the Second Amendment was written, no matter the silly prattling of (lawyer) Paul Begala.

If it were only the lunatic ravings of Crabb, or Posner.  But it ain't.

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