Althouse on Judge Taylor’s Abuse and Larry Tribe’s Media Envy

by Roger Alford

I rarely listen to podcasts, but this podcast by Ann Althouse is definitely worth ten or fifteen minutes of your time. The first half discusses the irony of Judge Taylor’s decision requiring respect for the rule of law. Althouse says of Judge Taylor, “How dare you criticize the President for abusing power when you are blind to your own abuse of power.” She also excoriates Larry Tribe’s “media envy” in his recent post over at Balkinization. She says she thinks “Larry Tribe feels like his day is over. There was a time when being Larry Tribe, when being a Harvard Law professor teaching constitutional law, would cause you to have something of a cornered market as someone who interprets legal opinions and says what they all mean. Now with blogging the market is thrown open … and they will be judged on the value of what is said. And that shakes everything up.”

12 Responses

  1. I guess it would have been too much to ask for Althouse to actually, you know, take on the substance of Tribe’s argument. Much better — and easier — to accuse him of being past his prime. Could it be that Althouse herself suffers from a little bit of media envy?

    I’d also like Althouse to explain how Judge Taylor abused her power. Except for the NRO types, everything I have read about the decision concludes that its outcome is correct, even if its reasoning is underwhelming. If that’s true, how is it an abuse of power to enjoin the NSA program?

  2. Thanks Professor Heller, you took the words right off my keypad. I read again Tribe’s analysis to see if I missed something the first time ’round and still couldn’t fathom why Althouse saw fit to engage in such a transparently ill-spirited ad hominen attack. Althouses’s reasoning wouldn’t have passed muster in our ‘critical thinking’ course….

    I’m sorry Professor Alford, but ten or fifteen minutes of my time today was better spent reading the law blog debate on constitutional ‘originalism’ with Solum, Balkin, Leiter, Kaiser, et al. Indeed, maybe worth another fifteen minutes. It certainly exemplifies the better side of law blogging.

  3. Althouse actually does explain in some detail precisely why she thinks Judge Taylor abused her power. The gist of it is that Judge Taylor’s decision was a political, not legal decision, and that she undermined the rule of law by offering such an “atrocious” decision. “It would be ironic if in the name of holding the President to his legal obligations a judge were to default on the judge’s obligations.”

  4. Althouse’s rhetoric is all too typical: demonize arguments you disagree with as “political” and thus tyrannical; defend your own arguments, however, contestable, as “legal” and within the bounds of rational debate.

    By the way, I couldn’t stomach all of Althouse’s interview. Does she ever actually claim that the NSA program was legal? If not, her abuse of power argument is, shall we say, rather less than compelling.

  5. No, but the key point she is making is that you cannot know if Judge Taylor reached the “right” result unless you go through all of the proper steps of legal analysis to determine if the NSA program was illegal. Her point is that Tribe’s argument that the decision is essentially “fake but accurate” doesn’t hold water unless you take as a given that the judge reached the right result.

  6. By definition, a legally correct result cannot be an abuse of power — however “fake” the reasoning behind it might be. Does Althouse really believe that Judge Taylor intentionally engaged in bad-faith reasoning? Why? Because she is secretly a tyrant who wants to destroy the Executive?

    Again: a correct result reached through incorrect but good-faith reasoning is not — and cannot — be an abuse of power.

    Personally, I’m looking foward to Althouse’s impassioned plea to overturn the Supreme Court decision that refused to exclude evidence obtained through an illegal pretextual search because, counterfactually, the search could have been conducted legally. She must certainly think the Supreme Court abused its power in that one!

  7. But this is not your ordinary opinion. It really is devoid of the traditional indicia of legal reasoning one requires in the act of judicial decisionmaking. That is why Althouse says it undermines the rule of law.

    Look at page 31 of the opinion (available here) addressing the Fourth Amendment analysis. The conclusion is this simple syllogism: all searches must be reasonable; Congress made concessions to Executive need in FISA; therefore wiretapping implemented without regard to FISA is “obviously in violation of the Fourth Amendment.” That’s it.

    Or take the First Amendment analysis on page 33. The undisputed violation of the Fourth Amendment accordingly violates the First Amendment. That’s it.

    Or take the Youngstown analysis on pages 36-37. She flatly misunderstands Youngstown prong three and the interplay between Executive and Legislative authority. She obviously believes that if Congress forbids something then the Executive can never take action inconsistent with that prohibition, even if it does so pursuant to inherent authority.

    Althouse is right that the opinion wouldn’t pass muster in a first-year legal research and writing class. Seriously, pretend the decision was not written by a judge but instead was written by a first-year law student. That’s how it reads.

  8. That may well be true — but it still in no way justifies Althouse’s attack on Judge Taylor. Perhaps the opinion sets back judicial reasoning by decades (though I doubt it). Perhaps it even somehow undermines the Rule of Law (though I doubt that even more strongly). It still does not represent an “abuse of power” unless Althouse can show that the decision was wrong. And I’m willing to bet that her unconscionable attack on Tribe is indicative of the fact that she knows that isn’t the case. Given her far-right views on the subject, she should be happy Judge Taylor didn’t write a better opinion!

  9. Prof. Heller, I think you are wrong when you say that, if the result is right, there can be no abuse of power. in a democracy, process is more important to legitimacy than substance. Judges are expected to explain their reasons for their actions – transparency, which the Left deems so important in the executive, is even more important to the legitimacy of our most inherently monarchical branch (life tenure, unelected, elite backgrounds).

    It is also amusing that Judge Taylor muses that because the President’s assertion of power is not explicit in the text, it must not exist – after all, the judicial review she uses to strike down the program as unconstitutional is nowhere in the Constitution either! She failed to recognize that “Executive Power,” like “Judicial Power,” is a term of art from the founding that encompasses within its scope powers traditionally falling within that term (e.g. the “federative power” over foreign affairs by the King of England being subsumed within the “executive power” as recognized by Curtiss-Wright). Article II “vests” the Executive Power (i.e. clothes with power) just as Article III “vests” the judiciary with Judicial Power.

  10. As to the federative power being excompassed with he who is granted executive power,and that Article II is a grant of power rathe rtha merely a description of duties, witness John Locke in his Second Treatise on Gov’t:

    These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execution of the municipal laws of the society within its self, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the common-wealth, yet it is much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those, whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs and interests, must be left in great part to the prudence of those, who have this power committed to them, to be managed by the best of their skill, for the advantage of the common-wealth.

    Sec.148. Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated, and placed at the same time, in the hands of distinct persons: for both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the common-wealth in distinct, and not subordinate hands; or that the executive and federative power should be placed in persons, that might act separately, whereby the force of the public would be under different commands: which would be apt some time or other to cause disorder and ruin.

  11. Geesh, Heller, what gives? You state “It still does not represent an “abuse of power” unless Althouse can show that the decision was wrong.” Bull. The burden is on the judge to fully explain and support the decision to demonstrate why it’s correct, not on the citizens to “show that the decision was wrong.” And this is, I believe, Althouse and Mr. Alford’s position.

  12. Geesh, Cassandra, perhaps you should read more carefully. I never said the burden is on Althouse to show that the decision was wrong. I said that unless she believes the NSA program is legal — that there are no legitimate grounds for a judge to enjoin it, regardless of whether Judge Taylor hit upon the right ones — she cannot conclude that the decision was an abuse of power, however damaging to the legitimacy of the judiciary it might be (a dubious but still analytically distinct claim).

    Nom’s point, by contrast, is well taken. Just one question: do you believe that the Supreme Court is abusing its power (as opposed to perhaps damaging its legitimacy) every time it issues a summary reversal? They have no transparency whatsoever — as opposed to a poorly reasoned opinion — but I don’t think many people think they are an abuse of power.

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