Like you, I’m not a lawyer. I do however, hang out with a group of lawyer/judges in BC and have some first hand knowledge of the way they frame some of these problems to themselves, albeit in a different legal frame work .

Thanks. We tend to think of the courts as free-floating arbitrators, but they can’t really be separated from their larger political context. To make unpopular (yet necessary) constitutional decisions, the courts need to retain a certain amount of public legitimacy. So I think that deferring to the legislature on divisive social issues is a good way to protect the courts’ judicial independence.

Having said all that, Mark is on the cusp of convincing me that the way Iowa’s equal protection laws are formulated precluded the Iowa Supreme Court from ruling any other way. So maybe my objections don’t apply to this particular case.

Dude, I am so with you. The sentence “I don’t think (agents of the government) should be in the business of (action)” is probably one that I agree with for any values you’d want to put in there with very, very few exceptions. (Nutball Libertarian here, nice to meet you.)

I’m more ruminating over which side has excesses too costly to bear.

Given my (previously stated) opinion that the Dred Scott opinion was based on, among other things, precedent… I don’t know that keeping to the more conservative viewpoint regarding judicial leeway is necessarily less fraught with peril. Which is not to say that Buck vs. Bell is an acceptable price to pay.

As I said, I’m still chewing this over.

I’m currently trying to figure out whether historically, the repercussions of judicial rulings that were too old-fashioned were worse than the repercussions of progressive in the wrong direction rulings (the wrongs of which are mitigated by progressive rulings in the right direction).

Given that the barn’s gone, I mean. If there were a horse to lock up and a place to do it, I might reach a different conclusion.