Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 30, 2014

"My law clerks and I thought it appropriate ... to be a bit more expansive."

Judge Jones of Whitewood v. Wolf has given another media interview discussing his unusually "expansive" opinion holding unconstitutional Pennsylvania's definition of marriage as the union of husband and wife. See 23 Pa. C.S. § 1102 (defining "marriage" as "[a] civil contract by which one man and one woman take each other for husband and wife"). The interviewer explains that Judge Jones does not let the charges of "piling cliché upon cliché" or displaying "hubris" and "philosophical bombast" get to him. Says Judge Jones: "When you disagree with the premise or conclusion of a particular judge--well, we're an easy mark, aren't we? You can extract or mine opinions and take things out of context and describe us as something that we're not, but that goes with the territory."

This depends on "the territory" the judge chooses to occupy. And Judge Jones has chosen History, which is an unusually broad territory to defend.

It would reflect better on the judge if he were to be more reflective about the criticisms he has received for the way he wrote this opinion. After all, many other judges have been able to explain their reasons for reaching the same legal conclusions from similar legal premises without opening themselves up to some of the well-justified criticisms that Judge Jones has received.

Consider Judge Jones's made-for-Slate language discussing Pennsylvania's laws limiting "marriage" to the union of man and woman as husband and wife: "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

To say that this statement represents "incredible hubris" is not to "take things out of context" but to observe that Judge Jones believes he's something that he's not--the Judge as Everyman speaking for "a better people" than what he imagines their laws to "represent."

When one takes the judicial oath, statements like this do not "go with the territory." Criticisms for traveling beyond one's office do--and should.



Walsh, Kevin | Permalink