Judicial ESP

p>I wish I were U.S. District Judge Vaughn Walker. He can read the minds of people who voted for legislation that gets tested before his bench. That’s an amazing ability. It puts him on a par with the mighty Wizard of Oz, the powerful wizard of the Emerald City. In ruling against Proposition 8, which denied the validity of homosexual marriage in California, he demonstrated the power of Judicial ESP. He did so in divining that no rational basis drove people to vote in favor of Proposition 8. Steve Chapman of Reason Magazine describes the judges’ ruling.

Walker opined (as opposed to logically deriving from legal precedent) that Proposition 8 “fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license.” And furthermore, he decries the silly, silly “the notion that opposite-sex couples are superior to same-sex couples.” (HT: Steve Chapman)

Chapman, a supporter of both homosexual marriage and polygamous marriage, hates the decision. He hates it because Judge Walker superseded legislative and democratic processes that homosexual activists were in the process of grinding out victories under. He fears that the topic of conversation has been changed from gay rights activism to the Divine Right Judiciary. This fear is not aberrant in the current climate.

With the recent decision in Arizona, people increasingly feel that the law has been politicized to the pathetic point that important decisions are made on a basis of team loyalty, not moral or intellectual ratiocination. Get your side’s judges on the bench in large numbers, and you too can own yourself a nice, powerful branch of the Federal Gubbermint. Forget legal minds, we have ideological hired guns on the bench.

This hasn’t been entirely a new phenomenon. Dred_Scott_v._Sandford doesn’t rank as a proud moment in US History. Taney, like Judge Walker, based his ruling on the concept of Substantive Due Process. That is, he claimed that the Emersons owned Dred Scott and would be wrongly deprived of their property by government action if Scott were manumitted. Depriving Major Emerson of his slaves because the Army sent them to free territory would, in Taney’s mind, represent an unjustifiable taking.

Walker’s invocation of Substantial Due Process involves what legal scholars refer to as a rational basis review. This involves a philosophical determination of whether the government has a rational basis to engage in a given legal restriction. If no logical interest is served by the law, it is then subjected to strict scrutiny to determine whether it should still be allowed to stand. Once Judge Walker has read the minds of Proposition 8 supporters and determined that no rational basis existed for the Proposition to become law, he could then apply the most stringent judicial standard to determine whether it could remain valid. A law must pass three standards to withstand strict judicial scrutiny.

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive.


At this point, Judge Walker can successfully insult thousands of years of morality and common sense by arguing that the state has no compelling interest in fortifying the institution of marriage athwart societal assault. In his magical mushroom world, where the sky is generally purple, the State of California losses nothing if marriage is expanded and has its meaning deconstructed.

What this entire carefully constructed Lawfare Strawman misses is the entire “Yuuuuck! Factor,” and how that impacts the state and the union. The Yuuuuck! Factor involves an action or a failure to take action on the part of a society so revolting that its constituent members grow disgusted and reach for the barf bag. Rene Descartes famously observed “Cogito ergo sum.” He forgot that Howler Monkeys achieve pretty much the same level of cognizance. When they get hungry, they can think of very imaginative ways to get inside your tent and raid your backpack.

Human beings involve far more cognitive firepower than just the logic app. You and I not only think, we feel and discriminate. Our moral and aesthetic senses of judgment and discrimination put the human being higher on the ladder. Cogito ergo sum. Furthermore, I can also enjoy a good sci-fi short story or a Renoir. That means I not only exist, but also achieve a higher level of conscience than the aforementioned Howler Monkeys with the munchies.

So why does this disqualify Judge Walker’s judicial ESP as a method of determining the interest of the state? It fails to account for what impact occurs when a significant plurality of any society just looks at the law of the land and thinks “Yuuuuck!” They just shake their heads and wish it was viable for them to raise their children elsewhere. Does that sort of a prevalent social Zeitgeist undermine the interests of a government or its citizens? Then there’s what happens when about fifty Judge Walker Specials get married and the film goes worldwide on CNN. Why again do they hate us?

Walker can construct whatever logic structure he wishes. He can’t make anyone else not want to see it get condemned and torn down. The risk here is that ultimately a large proportion of Americans will feel that way about our laws in general. Then, like the unfortunate characters in the Larry Niven story Cloak of Anarchy, we’ll get to find out all over again what it is like to have no respected or effective law around at all.

Thus Judge Walker and his judicial ESP reminds of the Wizard of Oz. He appears great and omnipotent. He speaks with a voice of profound gravamen. But at the end of the day, when you pull back the curtain, we discover that nothing is really there. That will be the future of American Law if we don’t return it to a firmly grounded basis of fact, not some partisan jurist’s desire to make a name for himself and help his political team find the end zone.

X-Posted At: The Minority Report