22 Aug When Is a Judicial Decision an Abuse of Power?
Given how interesting the discussion about Roger’s post about Ann Althouse and Judge Taylor’s decision in the NSA case have been, I think it’s worth opening up the discussion to readers who don’t necessarily read beyond the comments. The basic question is this: When is a judicial decision an abuse of power?
At a minimum, I think, a judicial decision cannot be an abuse of power unless it is legally incorrect. The easy case is a decision that is correct for the reasons articulated by the judge who issued it. The harder case is (arguably) the Judge Taylor situation, where the outcome of the decision is correct, but for different reasons that than the ones articulated by the judge. In my opinion, even the harder case is not an abuse of power; the expression seems to refer to a decision that the court did not have the authority to make, and a decision that reaches the correct outcome — even on the basis of shoddy reasoning or, worse, naked politics — cannot, by definition, fall in that category.
(By way of comparison, think of Whren v. United States, where the Supreme Court held, in rejecting a Fourth Amendment challenge to an obviously pretextual traffic stop, that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officerc’s action does not invalidate the action as long as the circumstances, viewed objectively, justify that action.”)
I also believe — though here I admit the argument is more contestable — that even an incorrect decision does not qualify as an abuse of power as long as it was issued in good faith. Judges are not infalliable; even the best ones will occasionally make mistakes. Should we describe those mistakes, no matter how well intentioned, as an “abuse of power”? Objectively, perhaps — a particular decision may well arrogate to the judiciary a power that it does not constitutionally possess. But there seems to be a subjective component to the abuse of power, as well, some kind of mens rea requirement. Colloquially, abuses of power seem to be intentional, or at least reckless — the judge knows the judiciary doesn’t have the power to issue a particular decision, but does so anyway.
If my argument is sound, I think it is difficult to argue that Judge Taylor’s decision was an abuse of power. Few, if any, legal scholars are arguing that the outcome of the decision is legally incorrect; the bulk of the criticism has been directed at the rationales Judge Taylor used to reach that (correct) outcome. So even if Judge Taylor’s decision is more political than legal — which I’m not sure is the case — the most that can be said is that she damaged the legitimacy of the judiciary and probably did more harm to the anti-NSA case than good.
Readers?
Agreed. Presumably she believed in her result, or believed it was correct. Now, Bush v. Gore – that’s an abuse. No way in hell the majority really cares that much about equal protection — that’s why they labelled it a one-off!
On a related note, has the ACLU v. NSA injunction been stayed by the district or appellate courts pending appeal? And would her staying the injunction make it truly or apparently less of an abuse?
ACLU and NSA have stipulated to a stay pending appeal.
The problem I can’t get past is Professor Althouse’s rhetorical techniques in her own analysis of the case. I think perhaps, a secondary question, is when do academics “abuse their power.” After admitting to only having skimmed the opinion, Professor Althouse wrote on her blog: “It’s hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it’s good to show it?” I realize that blogging is a medium made for quick impressions that change (or deepen) over time and that a law professor’s skimming a case might be more exacting than say the ordinary person skimming a case. But how do you, based on a shallow read, launch into such accusations about the judge’s motives? I think the statement that Professor Althouse was concerned about “an outward appearance of heavy scholarly effort and pristine neutrality” is exactly her focus and it’s a recurring theme in her work. She… Read more »
In light of this post I thought you’d be interested in a developing story:
U.S. District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest
Which I briefly commented on here.
Best,
G.S.M.
Apropos of Kevin’s post, here is Ann Althouse in an op-ed in today’s New York Times (available here):
Kevin, The main objection I have to your thesis is that it seems to posit that judicial method is irrelevant. It suggests that if the right result is achieved the means to that end are of little concern. This can’t be correct. The means by which a judge achieves the result is critical to the proper exercise of judicial function. Let’s assume that the correct result is that a particular practice violates the Fourth Amendment. Now assume that a judge chose some arbitrary method to reach that result, such as the flip of a coin or their own gut feeling of what was right and just. And they mean well in doing this, i.e, their conduct is not in bad faith. In such a case we would say that the judge abused her power by not adhering to the judicial method. If the judge does not display a respect for and adherence to the judicial method, with due regard for precedent and proper application of the rule of law, then the judge is abusing her power. To give you a concrete example, I think it is difficult to deny that the Missouri Supreme Court abused its power in Roper v.… Read more »
So, what we have here is a classic instance of the Freudian psychological defense mechanism known as projection? Sounds plausible to me. As to answering Professor Heller’s question, permit me first to observe that when it comes to being concerned with abuses of power, comparatively speaking, one is naturally if not likely led to an examination of the congressional and executive branches of our democratic system for, historically, the judiciary seems less prone to such abuse, a counterintuitive conclusion in light of the fact that the judicial branch is often characterized as the least democratic branch of government. That the judiciary, perhaps for structural reasons, is less liable to abuse is a remark that sounds startling only in light of recent and widely acclaimed works by such legal luminaries as Jeremy Waldron, Larry Kramer, and Mark Tushnet. Let me explain why I think it is quite rare that we will find judicial decisions that evidence an abuse of power. Following a normative analysis by Lawrence Sager in Justice in Plainclothes: A Theory of American Constitutional Practice (2004), I think it’s safe to say that the judicial branch in fact conforms to the constitutional reticence recommended by Sager, what he terms… Read more »
Perhaps I should have noted that the ‘projection’ comment is in response to ‘Non liquet.’
Yes, Seamus, and as Glenn Greenwald writes today in response to Professor Althouse’s op-ed:
“Althouse did not follow this case and had no idea what happened in it. She formed her views about the court’s ruling and then proceeded to express them loudly and publicly without bothering to do the smallest amount of work which would be necessary for forming a responsible opinion — including even reviewing what the DoJ argued here or finding out what happened previously in this case (she even aggressively criticized the court’s opinion while admitting that she only had time to ‘skim it’). Even after that, it is clear that she just read the opinion and then spat up some trite political slogans attacking the court, exhibiting precisely the intellectual sloth and undisciplined approach of which she thinks she is qualified to accuse Judge Taylor.”
(I do feel badly to hijack Professor Heller’s serious discussion like this in the comments.)
With respect to the argument that whether or not a judge is acting in good faith is determinative to whether she has abused her powers (and without stating any opinion regarding any aspect of the case at hand) — if the President sincerely, but mistakenly believes that a particular program is within his constitutional powers, has he abused those powers by implementing it? I would say ‘yes’ he has, regardless of his sincerity.
Should one’s conclusion be different in the case of a judge enjoining a program in the mistaken belief it is unconstitutional?
My gut reaction is that it is indeed different, but I can’t articulate why that should be so. As I reflect on this, I’d be interested in hearing any thoughts as to why my instinctive reaction is right or wrong.
I don’t think the argument was simply ‘whether or not a judge is acting in good faith is determinative to whether she has abused her powers,’ for that’s too strong, rather, it’s that we accord presumptive benefit of the doubt to the judge given some of the reasons I outlined above. And I would go farther than Professor Heller and state categorically that in and of itself an incorrect decision cannot be construed as an abuse of power, as some evidence outside the opinion would have to be brought to bear for such an assessment, assuming the opinion is penned within the sorts of constraints cited by Sager above. The judicial branch operates with structural and procedural constraints that make comparisons with the executive and legislative branches awfully hazardous: not without reason is the judiciary referred to as the least manifestly democratic of consitutional institutions (although I happen to believe it serves the means and ends of democracy rather well) and Sager is right in stating that there is often an ‘implicit when not tacit recognition by judges that the bulk of claims for constitutional justice are the prerogative and obligation of popular political institutions.’
Uh, I just wanted to point out that Ann Althouse’s brilliant quote from the NYT is tu quoque-type tripe.