I write here often that we must distinguish between law and ethics, and as a lawyer, I am comfortable with the reality that a decision required by the law may be unethical, in that the results may harmful and undermine the broad goal of what a law or laws are supposed to accomplish: a healthy society, a functioning government, a safe and happy public and justice. Just as doctors need to develop emotional armor that allows them to go on practicing medicine when the operation is a success but the patient dies, so must judges learn to move on when interpreting a law as written has an absurd result, and they must allow that result to occur. I understand all that.
I still can’t understand the opinion in Taylor v. Kobach, however.Maybe someone can explain it to me with a straight face. The opinion itself is beyond reproach, clear and unassailable. The problem is that it ignores the Mastodon in the courtroom: the letter that the opinion deems sufficient to meet the requirements of the statute in question embodies a lie, and defeats the intent of the very statute that the court is using to declare the letter valid.
How can judges do that? How can they stand doing that? Continue reading