A Stitch in Haste

When the last great compendium of anti-libertarian atrocities is finally compiled, "banning aluminum baseball bats" will likely not be anywhere near the top. Point conceded.

But the emasculation of judicial review and the foolhardy reliance upon the purported collective wisdom of legislators, especially local legislators, will surely rank among the top ten:

A judge on Tuesday upheld New York's ban on metal bats in high school baseball games, saying it was not his place to overturn a law that was approved by a local government with the public's safety in mind.

U.S. District Judge John G. Koeltl said there is no clear evidence that metal bats cause more serious injuries than wooden bats but added the City Council is entitled to make the judgment that the risk is too great.
...
David A. Ettinger, a lawyer for the challengers, said legislators needed to provide some scientific evidence that the metal bats are unsafe. Manufacturers then could adjust the makeup of metal bats to make them safer than some wooden bats, he said.

Leave for another inning the question of whether laws restricting liberty should always or never be subjected to so-called "strict scrutiny" or "rational basis review" or something in between. Let's concede that, under current jurisprudence, a proscription such as this is subject to the lowest standard of judicial review — "mere rationality."

Fine — so where is that "mere rationality"?

The lawyer for the challengers is exactly right: "Low-level scrutiny" is not, or ought not be, "no scrutiny at all." "Great deference to the legislature" is not, or ought not be, "absolute deference to the legislature."

If the City Council — a gaggle of raw neophytes in the wake of a recent and draconian term limit law — wants to pass bans (i.e., restrict liberty) based on "rational basis review," then perhaps they could be so enlightened as to actually produce a rational basis every now and then?

Not one piece of objective evidence was introduced to support the "conclusion" that metal bats are more dangerous than wood bats. The City Council literally guessed. Their compass was not data and analysis, but warm fuzzy feelings and their belief in their own intuitive superiority.

Judges should defer to this?

This jurisprudential abomination — that legislatures should be allowed to guess when passing laws — is not new in New York State. It was the same sloppy, disingenuous gobbledygook that the state's high court used to deny equal marriage rights to gays:

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.*

Translation: The Legislature can guess that straight couples need to be bribed into getting married in a way that gays need not be (don't worry — no one else understands it either). No data whatsoever to support that guess, but so what? Defer at all costs.

The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples[.]

"Could find." Not "did find," but "could find." Basic, urgent constitutional questions being decided by guesswork. This is what passes for Twenty-First Century constitutional jurisprudence.

The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.

Again, a random and wholly undocumented guess is now a "rational basis."

So as you can see, it's not about baseball bats. And it's not even about gay marriage. It's about the very concept, the cancer, of judicial abdication. It's about a broad spectrum of disgraceful decisions enabling disgraceful actions from disgraceful politicians. From a de minimis baseball ban to an historic human rights atrocity. And countless other examples in between.

And not enough spectators crying "Foul!"

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*Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. Ct. App., 2006).

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I hope to have some thoughts about the recent trial court ruling in Iowa, and the litigation in California, over the weekend.

I've skimmed the Iowa ruling, and I can say this upfront: It's everything the New York ruling wasn't but ought to have been.