April 6, 2009
NYT presents dueling law profs' views on Varnum and the role of courts
The New York Times "Room for Debate" blog features dueling perspectives of law professors Kenji Yoshino and Robert Nagel on the Iowa Varnum decision.
Yoshino focuses on how the "Iowa decision repeatedly expresses pride in the state judiciary’s record on civil rights" (for more on this, see the amicus brief filed by Iowa law and history professors) and the significance of the fact that the decision was unanimous, a point on which he compares it to the moral authority of Brown v. Board of Education.
Nagel uses the decision as an occasion to attack the principle that judges may find within constitutions certain principles that override historical convention and the will of the majority. He criticizes the Iowa court's "proud but unsubstantiated belief that the mental efforts of a few judges are in fact a better source of wisdom than, as the court puts it, 'thousands of years of tradition,'" and the "complete inability to distinguish the kinds of considerations that are appropriate for judicial decision-making from the kinds that are appropriate for legislatures."
April 6, 2009 | Permalink
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