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.