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.
Saturday, April 14, 2012
The Judge as Moral Arbiter
Posted by David Schraub at 10:52 AM
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While I agree that 'Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve ... important functions,' I disagree that opinions like Brown's are really that sort of opinion. First, she *doesn't* think the law is genuinely constitutional, only that the DC Circuit is constrained by Supreme Court precedent to rule that it is. Second, she ranges far beyond the law in question to rage against the machine of regulation in general.
A far better example of what you're talking about would be Justice Thomas's dissent in Lawrence v. Texas, where he literally says the Texas sodomy law is uncommonly silly and something he'd try to repeal had he been a Texas legislator, but it is Constitutional. The dissent is two paragraphs long and gets its point across without digressing into political potshots (or, as in Scalia's dissent, into snide remarks about homosexuals). I disagree with its substantive claim that there was no Constitutional problem with Texas's law, but it's rather wonderful how completely Thomas gets across his opinion of the matter with such brevity.
In contrast, Brown's opinion is wholly unconstrained and uncabined from the case before her. To quote another concurrence in full:
GRIFFITH, Circuit Judge, concurring: I, too, agree fully with the per curiam opinion, but do not join my colleagues’ concurrence with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.
Brown keeps claiming a Constitutional right of economic liberty exists, without stating where in the text or in our pre-Lochner jurisprudence such a right -- especially against *state* police power, see Slaughterhouse -- can be found. The citation to Randy Barnett suggests perhaps she's looking to the 9th Amendment, but she never says so explicitly.
And even what she thinks would be the ideal outcome in this particular case is unclear. Should the exemption for producer-handlers have been retained, giving the Hettingas a competitive advantage solely through regulatory arbitrage over companies that are solely handlers of milk? Or should all regulation of milk-pricing be eliminated? (As an antitrust fan who's suspicious of New Deal legislation that overtly subverted U.S. competition law, I'm actually inclined to the latter as a matter of policy.)
Unlike the Thomas dissent, which left his precise views on both the Constitution and policy in no doubt, Brown's opinion is a muddle of invective toward the Looters and sympathy toward the Producers as embodied by Hettinga that does a poor job on expressing either her Constitutional or her policy preference.
Well sure -- as my other post makes clear, I think Brown's opinion is substantively ill-formed. But the idea that judges can legitimately write opinions "like this" (where "like this" means sustained discussions about "what they think the proper law or policy is with respect to the case", not "poorly reasoned") I'm willing to defend. And I don't think it needs to be restricted to a Thomas in Lawrence style opinion (though it can be). If Brown had written a brilliant treatise on economic liberty and why it was constitutionally protected (or hell, economic liberty and why it should be our national legislative policy even if the Constitution is silent about it) -- hey, good on her.
I'm guessing Kerr hasn't had a problem with opinions like Thomas's in Lawrence.
If a judge is going to wax on for 6 pages about her overall economic theory, much less write something treatise-length, it shouldn't be inflicted on the Federal Reporter. There's probably a journal that would love to publish it instead (HJLPP, anyone?). Freed from the stylistic and time constraints of a concurrence, and with the guidance and review of an editorial team, Judge Brown hopefully could have composed something that more coherently reflected her position and gave it the solid grounding in Constitutional text and caselaw that she presumably would think it deserves (and that it certainly needs in order to be persuasive to more than the folks already singing in the Lochner choir).
The only reason to half-ass it into a concurrence is if you want it there to be cited (by you or others) in the future and a concurrence carries more authoritative weight than an article or speech.
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