Low blows













Photo credit:  Library of Congress. Bain News Service, publisher.  [French boxer Charles “Little Apache” Ledoux and Frank Fleming]

I have made my share of mistakes.  Some of them have been humdingers.  (In later posts, I intend to discuss a few of those screw-ups.)  As a result, I am no stranger to reversals.  While I wince, I also understand that it is the job of the superior judge to correct the errors of the inferior judge.  Most of the time, and this is particularly true at the Eighth Circuit, appellate judges are fair and respectful in their description and explanation of the trial judge’s mistaken views.  But that is not always the case.

Trial judges must learn to take low blows from their superiors.  It goes with the territory.  When that happens, the sensible course of action for the trial judge in most situations is to shut up and go about business as usual.  Take it on the chin and move on.

There is something to be said, however, for having a backbone.  That is, once in a blue moon, a counter punch is in order.  An upper cut may provide general deterrence.

In the first Carhart case, Justice Anthony M. Kennedy took a cheap shot.  In dissent, the Justice wrote:

The United States District Court in this case leaped to prevent the law from being enforced, granting an injunction before it was applied or interpreted by Nebraska. . . . In so doing, the court excluded from the abortion debate not just the Nebraska legislative branch but the State’s executive and judiciary as well. The law was enjoined before the chief law enforcement officer of the State, its Attorney General, had any opportunity to interpret it. The federal court then ignored the representations made by that officer during this litigation.  . . .

Stenberg v. Carhart, 530 U.S. 914, 978-979 (2000) (citations omitted).

Giving due allowance for Justice Kennedy’s evident anger at getting outwitted by his colleagues in Casey,  the “United States District Court” did not do any of the things that Justice Kennedy ranted about in his dissent.  Even a cursory look at the record would have shown that the Justice’s statements were untrue.  Several examples are illustrative.

Instead of granting a temporary restraining order without hearing from the other side (as is the practice in many federal courts), I heard from Nebraska.  I also held a preliminary injunction hearing and then a trial where everything the parties wanted me to consider was considered.  I “ignored” nothing.  As for considering the views of the three branches of state government, the Nebraska Attorney General was a party to the litigation as was the head of the relevant state executive department that was tasked with administering the law.  No party asked me to certify any questions to the Nebraska Supreme Court to obtain a ruling on the meaning of the challenged statutes.  Perhaps Justice Kennedy did not know it, but the Nebraska Supreme Court typically refuses to answer certified questions posed by federal courts.  And that is particularly true where the facts are in dispute.  Still further, I asked the parties whether they wanted me to appoint an independent expert so I would get an objective assessment of the medical issues.  Both sides declined.  Over Plaintiff’s objection,  the ruling was “as applied” to Dr. Carhart only.  In short, I did not “leap” to prevent the law from being enforced and any fair reading of the record would have made that plain.

More than 12 years have passed since Justice Kennedy wrote the words I highlight now. They still sting.  Although the assertion may seem dubious and even laughable, this post is not primarily about me.  I am a senior judge and I will be gone soon.  Justice Kennedy is no spring chicken either.

I am more concerned with the future and the implicit but critical social compact that binds judges in the same system together when trying to fulfill a common purpose.  If, in this cynical age, federal trial judges are to faithfully perform the difficult and sometimes unpopular roles assigned to them by their superiors, it is not too much to expect that they will be treated with more fairness and respect than Justice Kennedy displayed in his vitriolic dissent.*

*I am not the first person to describe that dissent as vitriolic.  See Jeffrey Toobin, Swing Shift, p. 6, New Yorker (September 12, 2005) (archived).


3 responses

  1. Thank you for your candor, and for writing this blog.

    In law school, we read case after case in which the facts are described in the voice of the third-person omniscient narrator, and never once are we told to question the court, to consider the possibility that the “facts” are not just wrong, but wrong in serious ways, wrong in ways that cannot be a mere mistake. I still recall the terrible sting of the first time I had an appellate case decided against me on grounds that I felt were not just erroneous, but downright dishonest. I still remember reading that opinion, cursing impolitely in my office at no one in particular, swearing against the judges and the Presidents who appointed them, wondering just how terribly wrong the “facts” were in so many of these cases.

    I went to one of my mentors for guidance, and was told with a laugh, “get used to it.” When they started out, they realized they had no idea what they were doing, then after several years thought they understood how judges and courts worked, then after more than a decade realized they never had any idea at all — so they adopted a zen attitude towards it, repeating the mantra “I’m just creating a record,” which would lead them towards the right steps without getting them too emotionally invested.

    I don’t think I can be that dispassionate. I doubt most federal judges could, either; it’s my impression that all of them truly love the law and their work, and so, while they can maintain objectivity in their analysis, cannot emotionally divest themselves the way that mentor of mine (who was professional, but did not love the law) suggested. I frankly wonder what efforts, if any, Justice Kennedy made to investigate the record. Did he simply pull that assertion from an amicus brief? Did he get so blinded in his dissent he couldn’t even see the case for what it was?

    For what it’s worth, it’s my impression that few people — lawyers or non-lawyers — give the Supreme Court much credibility on abortion. No one believes the Court is thoughtfully reasoning its way through the issues to the answer mandated by law; the current members were all appointed in large part due to their perceived personal views on abortion, and it is expected by everyone that they will apply those personal views in practice as “the law.” Thus, as unfair as the dissent was, it also means little, even less so over time.

  2. Dear Mr. Kennerly,

    Thanks for your kind comment.

    In future posts, I intend to write about the primary job of a trial judge. That is, telling the truth. I have found that task much harder than one might imagine.

    All the best.


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