Proposed principle of "judicial objectivism": Judges should try to avoid basing judicial opinions on personal opinions
JUDGE "JACKASS" JONES, POSTER CHILD OF JUDICIAL ACTIVISM
My proposed principle of "judicial objectivism" is that judges should try to avoid basing decisions on their own biased personal opinions and should try to use reasoning that is so airtight that no reasonable person could find fault with it. I call it "judicial objectivism" to distinguish it from the general philosophy of "objectivism" and the "objectivism" of Ayn Rand in particular, though my "judicial objectivism" is related to those other philosophies' idea that there are truths or realities that are independent of individual perceptions. IMO the principle of "judicial independence" is actually harmful when it encourages -- as it did in the case of Judge "Jackass" Jones -- judges to base their decisions on their own biased personal opinions. Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. This proposed principle of "judicial objectivism" -- like my proposed principles of "non-justiciability" and the "compelling reason" test for non-literal interpretations of the Constitution -- is aimed at eliminating or reducing the courts' arbitrariness, capriciousness, "activism," and "legislating from the bench."
"Opinion," like "theory," is a term that has a technical definition that differs from the everyday, colloquial definition. The technical definition of "opinion" in the law is, according to my Webster's New World Dictionary, Third Collegiate Edition, "the formal statement by a judge, court referee, etc. of the law bearing on a case." One of this dictionary's colloquial definitions is: "(1) a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one's own mind, judgment." In comparing "opinion" to several synonyms, the dictionary also says, "opinion applies to a conclusion or judgment which, while it remains open to dispute, seems true or probable to one's own mind . . ." My "judicial objectivism" idea is aimed at eliminating or reducing the openness to dispute. As for "theory," maybe the Darwinists should hire process servers to serve process on governments in lawsuits charging that the government officially uses the term "evolution theory" even though the technical meaning of "theory" is different from the colloquial or everyday meaning.
The statement "ID cannot uncouple itself from its creationist, and thus religious, antecedents," in the conclusion section of Judge Jones' Kitzmiller v. Dover opinion, is a good example of a statement that violates this principle of judicial objectivism, because reasonable people can easily find fault with that statement. For example, many reasonable people believe that ID "uncouples" itself from creationism by strictly using only scientific arguments and avoiding religious sources. For example, intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.
IMO a good example of a ruling that satisfies "judicial objectivism" is the ruling in Romer v. Evans that particular groups of people cannot be barred from seeking the aid of the government, which Colorado's Proposition 2 did in effect (Proposition 2 prohibited all laws and regulations aimed at protecting homosexuals from discrimination). The majority opinion said,
Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
There was a lot of moaning and groaning that the courts, by striking down a proposition approved by the voters, had overturned the "will of the people," but IMO there is no reasonable argument against the above reasoning. The only counterargument that dissenting justice Antonin Scalia could raise was the feeble argument that this reasoning appears (in his opinion) to be new:
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.
Well, Antonin, there is a first time for everything, and the next time the principle is raised you certainly won't be able to argue that "[t]he world has never heard of such a principle."
I find other arguments of the majority to be unpersuasive -- for example, the majority said that Proposition 2 shows animus against homosexuals. But a lot of legitimate government laws and regulations arguably show animus -- for example, laws against gay marriage arguably show animus against homosexuals.