At Constitution Daily, Erwin Chemerinsky: There is No Such Thing as Objective Judging. Here is an excerpt:
There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.
Inescapably, constitutional law involves the balancing of competing interests, and there is no “objective” way to do this. It is why a conservative, like Antonin Scalia, and a liberal, like Ruth Bader Ginsburg, will so often disagree even though they are equally smart, conscientious, and knowledgeable. No constitutional rights, not even the prohibition of racial discrimination, are absolute. Courts constantly must decide if there is a compelling or at least a legitimate government interest that justifies infringing a right or discriminating.
Is the government’s interest in protecting children sufficient to justify a law that prohibits minors under 18 from buying or renting violent video games without parental consent? Does the desire to protect the privacy and sensibility of those grieving justify forbidding offensive protests at the funerals of those who died in military service? Does the government have a compelling interest in diversity in the classroom sufficient to permit affirmative action by colleges and universities? Do laws that discriminate against gays and lesbians by denying them the right to marry advance any legitimate government interest?
Posted at 6:15 AM