Judge to Newspaper Editors: “Please Quote This!”
I am suspicious of judicial rulings whose opening paragraphs seem to say: “Please quote this in the newspaper!” Citizens reading such rulings cannot be blamed for suspecting that the judge is more interested in the approval of elite opinionmakers than in applying the law.
I remember thinking this in 1997, when a Massachusetts Superior Court Judge reduced the conviction of au pair Louise Woodward to involuntary manslaughter, in an order that began:
The law, John Adams told a Massachusetts jury while defending British citizens on trial for murder, is inflexible, inexorable, and deaf: inexorable to the cries of the defendant; “deaf as an adder to the clamours of the populace.” His words ring true, 227 years later. Elected officials may consider popular urging and sway to public opinion polls. Judges must follow their oaths and do their duty, heedless of editorials, letters, telegrams, picketers, threats, petitions, panelists, and talk shows. In this country, we do not administer justice by plebiscite. A judge, in short, is a public servant who must follow his conscience, whether or not he counters the manifest wishes of those he serves; whether or not his decision seems a surrender to the prevalent demands; as long as the editors of the New York Times support his decision.
Okay, I made up that last phrase. But the fact is that judges often don’t care about the opinion of the unwashed masses, but they do care, deeply, about being criticized by newspaper editors — in particular the editors of the New York Times. And I don’t think it was just coincidence that this particular judge’s conscience happened to coincide with the views of those editors, who ran an editorial praising the judge’s decision. The opening paragraph quoted above (minus the bogus last phrase) was written for them, to be quoted by them.
And so it is with yesterday’s ruling invalidating a New York law banning same-sex marriage. The opinion, by Judge Doris Ling-Cohan, begins with high-flown rhetoric that characterizes the entire order:
From the literary references of Shakespeare’s Romeo and Juliet, to the anti-miscegenation laws of this country’s recent past barring interracial marriage, the freedom to choose whom to marry has consistently been the subject of public outcry and controversy. In fact, ironically, the parents of one of the named plaintiffs were, themselves, barred from marrying each other by an anti-miscegenation law that made it illegal for interracial couples to marry.
As with the beginning of the au pair ruling, when the judge wrote this language, it is transparently clear that she sought to be quoted in the newspaper. This is not judicial language. Nor is this:
The partners in each couple have been devoted to one another for periods ranging from three (3) to twenty-two (22) years and represent the rich diversity of New York.
I’m not 100% certain of almost anything. I don’t know that the sun will rise tomorrow. Nukes could explode across the planet, extinguishing humanity. Or it could just be cloudy. But I do know this for certain: Judge Doris Ling-Cohan, with her high-toned rhetoric about “the rich diversity of New York,” did not vote for George W. Bush.
I should not be able to tell that from a judicial opinion. But I can.
I have said many times that I do not have a problem with the concept of gay marriage. But I do have a problem with its being dictated by a single partisan Democrat judge, issuing a ruling that she hopes to have praised by the opinion elite, and quoted in New York Times editorials.
UPDATE: Even Jack Balkin is puzzled by the reasoning of the decision — and he is a lefty extraordinaire. I should know. I took Constitutional Law from him. (Via Instapundit.)
UPDATE x2: Welcome to Instapundit readers! Thanks to Professor Reynolds for the (unexpected) link.
For what it’s worth, I am very definitely a former (not current) student of Prof. Balkin’s, since I took Con Law from him in 1991.
Patterico, do you know whether the overturned law was passed by the legislature, or by the people of New York state? Does NY even have a procedure of direct ballot proposition, as we do here in California?
What are the prospects of the legislature amending the constitution to restore the ban? Unlike you, I do object strenuously to same-sex marriage (and to polygamy and polyandry); but more important to me, I join you in revulsion at judges who think they know better than the legislature or the people and have a duty to “correct the mistakes” made by the latter.
Dafydd
Dafydd (df2f54) — 2/5/2005 @ 1:13 pmThe opinions in casebooks probably aren’t representative, so there’s that. But as a law student I read language like that all the time. Judges have a hard time telling themselves apart from Rock Gods.
Lance McCord (ed5341) — 2/5/2005 @ 1:41 pmI see that Patterico is using his amazing powers of clairvoyance to deliver an ad feminem attack.
If he dislikes Judge Ling-Cohan’s reasoning, wouldn’t it be more honest for him to criticize the substance of her ruling? Patterico has once again descended to content-free invective.
P.S. to Patterico. Read the decision again and take a look at the Judge’s last name. You’ll notice that Loving v. Virginia places a significant role in her decision. Instead of going off on another Democrat/Republican tirade (since when were GOPers agaisnt diversity anyway?), why didn’t you pick up on this more obvious connection between her personal experience informs her judicial reasoning? This, too, is mere speculation, but it appears more on the mark than your one-size-fits-all theory of bias.
m.croche (3abb67) — 2/5/2005 @ 1:45 pm“But I do know this for certain: Judge Doris Ling-Cohan, with her high-toned rhetoric about “the rich diversity of New York,” did not vote for George W. Bush.”
Cuz we know how bush voters feel about Loving v. VA.
actus (e8ffe9) — 2/5/2005 @ 3:47 pmYes, acthole, we do. More specifically, Bush voters typically prefer to hear Loving v. Virginia cited for what it is (a reasonable extension of the 14th Amendment with respect to racial discrimination) and not for what it is not (a license to redefine marriage to mean whatever anybody wants it to mean).
Xrlq (c51d0d) — 2/5/2005 @ 4:30 pmCuz we know how bush voters feel about Loving v. VA.
No, I don’t think we do, Actus. Tell us. Tell us how 60 million people in this country feel about interracial marriage.
Patterico (756436) — 2/5/2005 @ 8:23 pm“Tell us how 60 million people in this country feel about interracial marriage.”
With their I (heart) NY t-shirts from the trip to the convention.
Sarcasm don’t come across the internet very well does it?
actus (e8ffe9) — 2/6/2005 @ 7:46 amNew York: Seeking Outside Counsel
Law Dork (0045a4) — 2/6/2005 @ 5:02 pm[Editor’s Note: This is the second in a series of posts on the New York marriage case, Hernandez v. Robles. The first, on the political spines of New York’s leaders, can be found here.] Before getting into the substance of…
When this decision is overturned, why won’t Judge Ling-Cohan be disbarred?
Chaufist Smith (e24b25) — 2/6/2005 @ 11:06 pmSince she is clearly abusing her power, why can’t a citzen have her arrested for violating the civil rights of the people of New York City?
Judges keep this up and it will end sooner than they think and not by disbarring either.
The issue is, as ever, Judges redefining the terms of law to fit their own political views. Marriage is legal bonding between a man and a woman. It has been this way for thousands of years and in this country has been so since its inception. I would have a better legal standing to interpret a barber’s license as state permission to practice medicine than I would to interpret marriage as being open to any and all comers.
I actually support gay marriage, but it needs to be defined by the legislature. For a single judge (or even a panel) to redefine the terms of the debate breaks the covenant on which our system of government is founded.
This is worse than debating the meaning of “is”. Here the matter is clear. The word marriage is well and clearly defined. The debate is whether we should extend this right (under this term or “civil unions”) to those for whom it was not conceived. Again, while I favor the initiative, I cannot support it unless the grant is made by the elected legislature.
And if this redefinition stands, why deny me the right to marry multiple times. What in the state or federal constitution grants the government the right to take away my biblically justfied right to poligamy?
While we’re at it, my pet dog would like to marry the neighbor’s dog. Either the words that we base these definitions on mean something or the whole thing goes out the window and anarchy reigns.
John H (e0a112) — 2/7/2005 @ 6:45 am‘ Either the words that we base these definitions on mean something or the whole thing goes out the window and anarchy reigns.’
Or some gay people live nice domestic lives and can plan for their retirments, futures, etc… Awful.
actus (ebc508) — 2/7/2005 @ 8:19 amAnd then every other judge gets to decide that every other clearly written law he doesn’t like means whatever he would have preferred it to mean.
Way to miss the forest for the trees, acthole.
Xrlq (ffb240) — 2/7/2005 @ 8:45 am‘And then every other judge gets to decide that every other clearly written law he doesn’t like means whatever he would have preferred it to mean.’
I tell you. Anarchy! Full of married people getting old and boring together! Maybe, just maybe, it’s the specter of such an anarchic state that will rein in judges before further chaos ensues.
actus (ebc508) — 2/7/2005 @ 10:57 amRich diversity, indeed. Us folks at the ABA (American Bestiality Association) appreciate progressive thinking like that coming from Judge Ling-Cohan. We also LOVE chicks with hyphenated last names.
Sheep Lover
ABA Representative (86bf57) — 2/7/2005 @ 11:25 am