When Is a Judicial Decision an Abuse of Power?

by Kevin Jon Heller

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.



12 Responses

  1. 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?

  2. ACLU and NSA have stipulated to a stay pending appeal.

  3. 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 avoids challenging people on the merits because she comes off with a conservative skew. Rather, she confines herself to attacking the “partisanship” or “rhetoric” of others, while masking her own in a veil of “pristine neutrality.”

    I think the podcast that Professor Alford linked to needs to be viewed in light of that motif in her online work.

  4. 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.



  5. Apropos of Kevin’s post, here is Ann Althouse in an op-ed in today’s New York Times (available here):

    The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

    This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed….

    If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

  6. 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. Simmons by refusing to follow binding Supreme Court precedent in Stanford v. Kentucky. It was solely the prerogative of the U.S. Supreme Court to reach the conclusion that Stanford was no longer good law, and the Missouri Supreme Court usurped that authority in deciding for itself whether to follow Stanford. The Missouri Supreme Court reached the “right” result in the sense that the U.S. Supreme Court ultimately agreed with its conclusion regarding the Eighth Amendment. But it did so in an improper manner.

    In short, the way a judge achieves the result is as critical as the actual result it achieves.


  7. 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 ‘under-enforcement of the Constitution’ by the judiciary, there being 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. Hence, where popular governmental actors ‘have put in place positive programs that have constitutional justice as their end, the Court should police those programs for the arbitrary exclusion of individuals or for unjust categorical exclusions; and the Court should guard against the deformation of traditional governmental structures that work to the disadvantage of vulnerable groups who depend on nonjudicial governmental actors for full protection against injustice’ [I should note here that Sager understands constitutional justice as ‘far from exhaustive of all political justice’]. In short, under-enforcement amounts to a circumscription of judicial activity best characterized as ‘secondary action by the Court, action in service of the efforts of the nonjudicial actors to realize constitutional justice.’ Again, while Sager is outlining a prescriptive model for us, I believe that in fact the Court has largely conformed to this model. When it has not, it has left itself liable to accusations of abuse of power, regardless of whether or not such charges were with merit. And, as Sager says, ‘there are distinct features of constitutional adjudication [e.g. precedent-respecting judicial judgment] that should give us some reasons for confidence in that process as the pragmatic means of helping us to recognize and respect the precepts of justice….’

    The normative judgments of judges, again after Sager, are ‘bounded and disciplined’ by ‘some combination of constitutional text, context, the intent of the framers (or more plausibly the framing generations) of the pertinent constitutional text, and deeply embedded tradition (perhaps accounting for the motivations of ‘originalism’ in constitutional interpretation, whatever its shortcomings for constitutional practice). Of course, in the spirit of Stephen Holmes (e.g., in Passions and Constraint: On the Theory of Liberal Democracy, 1995), we might conceive of the bounded and disciplinary character of such ‘constraints’ as at the same time enabling devices, analogous to the manner in which ‘preexisting or preset constraints enhance and stimulate the creative process,’ the constraints, in other words, of artistic genres and traditions (see Jon Elster’s discussion in Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints, 2000: 175-263). In addition, there are those ‘formal constraints within the work of art itself’ that serve to enhance aesthetic value, not unlike the manner in which legal argument in our judicial system is predominantly one of a limited number of forms: textual, doctrinal, historical, prudential, structural, and ethical (Dennis Patterson, after Philip Bobbitt’s Constitutional Fate: Theory of the Constitution, 1982; Patterson adds ‘ethical’ argument to Bobbitt’s list). In other words, formal argumentative constraints or ‘forms of argument,’ function as ‘backings,’ whereby we make sense of legal arguments with ‘claims,’ ‘grounds,’ and ‘warrants’ (see Patterson’s ‘Interpretation in Law:’ http://ssrn.com/abstract=702921 ). Judicial decisions of constitutional import that ignore or show contempt for the above formal constraints might be presumptive or prima facie evidence for an abuse of power claim.

    Structural features of adjudication further serve to immunize the judiciary from potential abuses of power. Here I have in mind features of the judicial process or adjudication as set forth by Sager: ‘the call of appropriately positioned parties on the attention of the constitutional judiciary; the common law protocol of adjudication pursuant to which the decision of a matter before a court must be justified with regard to past decisions and in turn projects a burden of justification on future decisions [i.e. stare decisis]; the articulate giving of publicly defensible reasons for decision; the collegial nature of state supreme courts and the Supreme Court of the United States; and the focused and redundant nature of judicial inquiry into governmental compliance with the Constitution [i.e. judicial review].’

    Judicial experience swiftly acquaints judges with the fact that the ‘liberty-bearing provisions of the Constitution speak at a high level of generality, and can only sensibly be understood as invoking broad principles of political justice that require a great deal of elaboration before they can produce concrete results in actual controversies.’ Put differently, and subverting the primary rationale of originalism, ‘the text of the Constitution is not an adequate guide to questions of constitutional meaning at the level of concrete detail’ (hence the need for originalist to supplement the text with ‘original’ historical context, a move fraught with all sorts of difficulties, as Mark Graber recently made clear in his post at Balkinization on ‘Originalism, History, and Objectivity’). Incidentally, this high level of generality or philosophical abstraction is what allows or accounts for the fact that Liberal constitutional provisions act, in the words of Stephen Holmes, as ‘meta-constraints: rules that compel each majority to expose its decisions to criticism and possible revision, rules that limit each generation’s ability to rob its own successors of significant choices.’ Holmes compares these constitutive (rather than, say, regulative) rules to the rules of grammar: such rules are ‘binding’ in an ‘emancipatory or freedom-enhancing way.’ ‘Grammatical principles, for example, do not merely restrain a speaker, repressing his unruly impulses while permitting orderly ones to filter through. Far from simply handcuffing people, linguistic rules allow them to do many things they would not otherwise have been able to do or even have thought of doing.’ Thus constitutions do not merely limit power, they ‘create and organize power as well as give power a certain direction.’ Originalists, at least in theory, are reluctant to grant the ‘emancipatory’ or ‘freedom-enhancing character’ of constitutional meta-constraints, if only because this necessarily leaves considerable scope for judicial discretion and the independent normative judgment of judges. They are dispositionally fearful of reasonable disagreement and/or the possibility of error (judges are, after all, fallible creatures, and this means we will, on occasion, come across a poorly or insufficiently reasoned decision, an occurrence that in and of itself does not amount to an abuse of power). As Gerald Gaus explains, the role of the judge is akin to the model of the umpire, and both can make errors: ‘We expect the umpire to do her best to track the merits of the case—to give a correct answer—and yet the finality of the umpire’s call does not depend on the correctness of the decision. The umpire’s calls are final but by no means infallible.’ The burden of proof for establishing that a judicial decision is an abuse of power is quite large, given the epistemological competence required for judicial office. Public justification of a decision or the reliance on public reasons by definition precludes personal or idiosyncratic reasons being employed by a judge. An incorrect decision in and of itself is not tantamount to a judicial abuse of power, any more than the umpire’s missed call is an abuse of his authority as an umpire. The ‘good faith’ requirement mentioned by Professor Heller is presumably a function of the public provision of at least plausible reasons for a decision. I therefore agree with Professor Alford that ‘the means by which a judge achieves the result is critical to the proper exercise of judicial function.’ And of course there was nothing whatsoever inappropriate or reckless or idiosyncratic about the manner or means by which Judge Taylor arrived at her decision. Moreover, I agree with Professor Alford that if ‘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, [….] we would say that the judge abused her power by not adhering to the judicial method.’ But of course none of this is applicable to Judge Taylor, for she did adhere to judicial method, for she did display ‘due regard for precedent and proper application of the rule of law.’

    Structural features of the judicial branch itself make it well-suited to serve the ends of political justice and further insulate the system from the judicial abuse of power. Sager elaborates:

    ‘At the heart of the social project of constitutional justice is the impartiality and generality of the moral perspective. Common to much of our thinking about political morality in general, and about “rights” in particular, is the notion that the distinctive and essential character of the enterprise of political morality is its concern that the perspectives of each group, each class, and indeed each individual be taken seriously into account and somehow preserved, even in the clash of wills and interests that will inevitably characterize politics in a heterogeneous society such as our own. Political fairness emphatically is not understood as a simple matter of the force of will or welfare multiplied by the number of persons who advance either, but as a matter of fairness to each person, separately considered. Seen in the light of this moral ambition, the judiciary is particularly well structured to address questions of constitutional justice. Judges are considerably more detached from the pressure of public opinion than are regularly elected public officials. Many judges are appointed for life, and most enjoy reasonably substantial job security; federal judges, with the guarantee of service for life at an undiminished salary are the model in this regard. …[T]he comparative independence of judges frees them from the potentially distorting influence of public will.’


    ‘the enterprise of adjudication is thus a kind of institutional reflective equilibrium. Judges are obliged to give each other and the broader audience of their opinions reasons for their decisions, and these

    reasons are of a special sort: They are in principle publicly accessible and publicly defensible, they are exemplars of what some philosophers [e.g. Rawls] have called “public reason.” These features of constitutional adjudication are reinforced by the collegial, deliberative nature of constitutional tribunals in our legal system—most particularly, of the Supreme Court itself.’

    None of the foregoing should be interpreted as an endorsement of ‘judicial supremacy.’ On the other hand, the foregoing should be read as an endorsement of the proposition that the ‘appropriate place for “judicial restraint” is in the interpretation of constitutional rights, recognizing the crucial role for the political process in determining the needs of the common good: judicial respect for the complexities of governance and the values of democratic choice and accountability should be an integral part of the ordinary process of review’ (T.R.S. Allan). Whatever the considerable powers and presumptive privileges of the executive, it is the responsibility of the judiciary to exemplify the meaning of the historic commitment to the rule of law, to say what the law is.

    Given the discussion above, it is safe to conclude that no case can be made for Judge Taylor’s decision amounting to a judicial abuse of power. The burden of proof faced by those making such an accusation is, understandably, rather arduous.

  8. Perhaps I should have noted that the ‘projection’ comment is in response to ‘Non liquet.’

  9. 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.)

  10. 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.

  11. 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.’

  12. Uh, I just wanted to point out that Ann Althouse’s brilliant quote from the NYT is tu quoque-type tripe.

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