Commenting on Judge Brown's opinion that I talked about in my last post, Professor Kerr also expresses his discomfort with "the propriety of placing such views in the Federal Reporter instead of a law review or published speech." I strongly disagree -- while obviously I disagree with the content of Judge Brown's opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way -- I'd like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.
Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?
But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.
For example, the Affordable Care Act might be perfectly constitutional and an awful, awful idea; it also might be unconstitutional and an entirely salutary and appropriate piece of legislation that nonetheless lies beyond Congress' commerce power. But, particularly if the law is struck down, that's not what we're going to hear from conservative opponents -- they will take the opinion as vindication that the law was an unconscionable socialist usurpation nipped in the bud. If the court wants to send that message, it might as well, but it should take affirmative control of what it is communicating. Judicial silence is not read neutrally -- fairly or not, amongst the public the baseline presumption at the moment is that legal victory means moral approval and legal defeat means moral disapproval. The stronger a norm there is of judges explicitly telling us what they think about the underlying policy merits of a dispute, the less likely we will be to conflate their legal discussion with a policy endorsement.
Or consider the infamous recent case where a Texas school district kicked a cheerleader off the team because she refused to cheer for a man who had assaulted her. The school district won in court; many were outraged by this, as it seemed to condone truly appalling conduct by the District. I argued that the district probably was acting perfectly legally -- but the Court should be clear to indicate its disapproval of conduct in the course of dismissing the suit. This is not just to assure the public that it still retains a conscience. It also has to do with the messages received by the parties -- what they are allowed to "take" from their victory or absorb in their defeat. The last thing we want is the school district thinking its legal victory constitutes any sort of imprimatur for their flatly inhuman conduct. Nor do we want to the message heard by the young woman in question to be "the Judicial Branch of the United States thinks you're a big ol' crybaby." The message we want to put out is that the school district is within its legal authority to act in this way, even though its actions were horrifying and demonstrate an incredible lack of empathy and prioritization that should cause all persons of conscience to question their fitness to serve.