Friday, November 30, 2012

Mr. Duncan's Logic

The JRCLS ranks 13th in the nation for U.S. Su...
No. It's not my habit to read the Washington Times. Nevertheless, William C. Duncan writes that "If the Supreme Court fails to hear Hollingsworth v. Perry, also known as the Proposition 8 case, it will be approving injustice." He goes on to state: "Thus, the right of the people of California to decide on this important issue was overturned by the state’s judiciary."

Mr. Duncan is president of the tiny Marriage Law Foundation with annual revenues of $100K. Maggie Gallagher is on the board. He is also a visiting professor (probably a contract hire without a tenure track) at J. Reuben Clark Law School at Brigham Young University. There are a few things that he overlooks:

The first of these is quite fundamental. The judiciary exists on the basic premise that the right of the people (either directly or through their elected representatives) to make law is limited by the constitution which the judiciary interprets. Checks and balances 101 professor.

Secondly, the Court receives over 10,000 petitions each year. Of these, the justices choose to hear approximately 75 to 80 cases. The conventional wisdom is that the Court selects cases that have far reaching impact or are especially interesting. Allowing one more state to recognize same-sex marriages would not seem to meet that unofficial standard. But what do I know?
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