Bench Memos

NRO’s home for judicial news and analysis.

Vaughn Walker’s Irrationality


In an article in the new issue of the Weekly Standard, law professor Robert F. Nagel properly sees in Judge Walker’s anti-Prop 8 opinion a stark illustration of the broader proposition that “judicial application of the rationality test can be a parody of intelligent analysis.”  His summation:

Despite all its cerebral and legalistic trappings, Judge Walker’s opinion is not an exercise in some detached and impartial form of rationality. Like the law it invalidated, his opinion is a reflection of aspirations, fears, guesses, and moral judgments. In political debate, people generally make no pretense about the controversial and uncertain nature of their arguments. Most jurists, in contrast, believe that judicial application of the “rationality test” is different from political argumentation. It is thought to be a high intellectual exercise that constrains the worst excesses of political decision making. What is at least as frightening as the unruly world of politics is the supercilious and resolutely self-satisfied world occupied by judges like Vaughn Walker.


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