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I think it is hard to say any decision is not political, but leaving that
aside, the judicial decisions cannot be principled, because they rest on and are
made by unelected individuals who always have an inadequate factual basis to
assess and judge the public policy at stake. They cannot call hearings,
enlarge the record at will, or call witnesses to explain what they do not
understand, or even do not know. They are not contacted by constituents
and not in contact with the other legislators who are also thinking about
similar issues and contacted by their own constituents. They are not
accountable to the public good or to voters.
Yoder suffered in particular from the myopic quality of a judicial window
into an important social problem. Years later we learn that the Amish
children are suffering tremendously, which may or may not be attributable to a
small horizon generated by inadequate schooling in this culture. No court
can assess what is the best policy then or now. I criticize legislators for
failing to ask the hard questions regarding religious exemptions, but at least
they can ask them and answer them in some depth.
Marci
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