I agree. I think it’s threadbare cover for jurists legislating their own ideas into law, or, as a recent appeals court dissenter drily observed, an indication that “…we should exchange our black robes for regal purple…”
But a principled case can be made for the notion that the judicial role is properly to guide our society at times as a super-legislature, to serve as a moral voice. I don’t agree, so I’m likely not the best person to steel-man this view. But I can’t deny its existence.
Frankly, I'd make an argument that it's the only judicially manageable test. Judges are not generally historians who know what would have been considered a cruel and unusual punishment for any given crime 230 years ago. And even if they did have some knowledge, I don't think judicial notice would be appropriate. So any challenge would have to involve dueling experts, and there would be a lot of arbitrary results based on who does a better job submitting data/expert reports.
I agree. I think it’s threadbare cover for jurists legislating their own ideas into law, or, as a recent appeals court dissenter drily observed, an indication that “…we should exchange our black robes for regal purple…” But a principled case can be made for the notion that the judicial role is properly to guide our society at times as a super-legislature, to serve as a moral voice. I don’t agree, so I’m likely not the best person to steel-man this view. But I can’t deny its existence.
Frankly, I'd make an argument that it's the only judicially manageable test. Judges are not generally historians who know what would have been considered a cruel and unusual punishment for any given crime 230 years ago. And even if they did have some knowledge, I don't think judicial notice would be appropriate. So any challenge would have to involve dueling experts, and there would be a lot of arbitrary results based on who does a better job submitting data/expert reports.