[Superman]

I've worked essentially in the "public" sector for a decade and a half now, though I am not on the payroll of a public agency currently except as a consultant. I've watched and participated in a number of court cases that were headed for a (state) supreme court review, and then read those reviews.

Again, a judge's viewpoint depends on his or her personal politics, usually. And then the decision hinges on interpretation of a passage in law, or a definition. That is, the judge finds an interpretation that meshes with the decision he or she WANTS to write. Lawyers understand this, and so they fill the briefs with options for the judge to consider. When you review the various briefs the judge considered, from both sides, you see this clearly. They are diametrically opposed, and even after you toss out the longshot ideas, you are still left with two or three very good arguments that attempt to lean the decision in a particular direction.

Frankly, part of what I am saying is that there is a misguided notion here. And that is, the notion that there is a clear, objective winner in these cases, and sometimes judges find it, and sometimes they miss it and make a bad decision. That's just not the case. No-brainers do not go to court. Or at least, then do not get appealed for two years and them bubble up to the supreme court.

Stuff that does get to the supreme court is stuff where the interpretation is going to count in the future. This court straightens the directions of stuff, so that in the future we do not end up with court cases, both apparently correct, that conflict. So, supreme courts are, yes, whether you like it or not, they are policy-making courts. The only alternative to that would be to have the legislature do their work, and believe me, you don't want a legislature doing that work. As partisan as you like to think courts are, they are from the planet Vulcan compared to legislative bodies.

And generally, as a rule, courts get more "liberal" (if you need to think of them that way, which is a bit of an oversimplification) than lower courts. They are also smarter. Yeah, that's a liberty you expected me to take, but it's also true. Lower court decisions are all over the place, and often enough, they are just dead wrong. Some of the most embarrassing decisions I have ever seen have come off the benches of the most conservative superior court judges. In some instances, you have to believe their law degree came from a box of Cracker Jacks. Upper courts are there partly to prevent superior court judges from being lynched.

And also, like it or not, upper courts are more circumspect (second time I've used that term today). They view the issue from a couple of steps back. They very frequently base their decisions on legislative intent, rather than the letter of the law. This is because the letter is not conclusive.

I have said before, and will say here again, legislatures often construct a law to be deliberately vague. That way, it is harder to pin them down and accuse them of decisive legislation (wouldn't want that, right?). They deliberately leave the hard part up to the courts.