Robin Vander Wall
This was not a panel that was going to be persuaded by the cruel and unusual argument. It would not have mattered how hard the point was argued. We have to denude ourselves of the idea that we can force judges to see it our way by being ever more overbearing in our arguments. That’s simply not the way it works . . . and it never has been.
Under rational basis, the Court doesn’t really care whether or not the policy achieves its stated purposes. This is a federal court being asked to determine the constitutionality of a state law. The word “federal” becomes exceedingly important in this context. State laws are presumed to be constitutional. That’s where we start. And the federal courts aren’t going to bend over backwards to find state laws unconstitutional without a plaintiff demonstrating more than this plaintiff was able to muster.
This was a good effort and it was worth taking a shot. Our side came up short. What is learned? If all we walk away with is continued ignorance about the way our federal judiciary works, then we are idiots. Hopefully, we confront the harsh realities we are facing and begin to approach our legal efforts with strategies that understand, and incorporate, what we can expect from the courts.
The courts aren’t going to change. We must.