Guest post: On precedent

Ken is a former Big 8 CPA “with a master’s in taxation who made the damn-fool mistake of going to law school,” so he says. He is now retired. He is also a marvelous writer and a good thinker. Graciously, Ken has allowed me to post an e-mail he sent me recently. That guest post in a moment, but first a brief introduction.

Ken writes about precedent and the late great Richard Arnold. For those of you who didn’t know Richard, you are the poorer for it. Richard was an intellectual giant, a true gentle man and in my opinion the best judge never to have made it to the Supreme Court. I really mean that.

Jeffrey Toobin wrote in “The Nine” (at p. 93 (the link takes you to p. 90, scroll down) of President “Clinton … weeping when he” told Arnold “he wasn’t going to appoint him” because of Arnold’s health. Richard served on the Eighth Circuit Court of Appeals until his untimely death. He died when he was my age now.

Arnold was not a fan of unpublished opinions. He wrote in Anastasoff v. United States that unpublished opinions were still precedent that had to be relied upon and followed by other judges. That opinion launched a huge debate. Ironically, however, that opinion did not become precedent because as Richard, himself, subsequently wrote, in an en banc decision, the dispute had been mooted. So, that is the context for Ken’s detailed, thoughtful and provocative guest post:

There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice.
                                                                   —Senior Judge R. J. Aldisert (CA-3)[1]
Dear Judge Kopf:
 
      I became aware of your blog on account of your stance regarding the staggering notion that, whereas the congressional gym was deemed as “essential,” that most judicial functions were not.  Mindful as I am of Chief Justice Marshall’s timeless admonition that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws when ever he receives an injury [and one] of the first duties of government is to afford that protection,”Marbury v. Madison, 5 U.S. 137, 163 (1803), to even state the case is to refute it.  It is rare for a sitting judge to speak out on issues of the day, and unfortunately so.  I commend you for it.
 
     Reading further, I came across your fulsome praise for Judge Glasser, raising a more distressing proposition: intellectual honesty in judging is so laudable and notable because it is so rare.  More to the point, this collective lack of intellectual honesty on the bench has reached the point where the Bill of Rights has literally become null and void for lack of meaningful enforce ment. Specifically, I would like to ask you about Judge Arnold’s famous opinion in Anastasoff, the intellectually dishonest manner in which it was withdrawn, and the logical ramifications of its having been withdrawn so irregularly.[2]  (As I have no business within the borders of your District, there should be no conflict issues.)  While a proper foundation must of course be laid, my question to you is straightforward:
 
What is left of the Bill of Rights if judges can disregard precedent with impunity?
 
      As you might recall, Anastasoff was the opinion that launched a hundred law review articles, holding that every decision of an appellate court must have binding precedential effect.  Despite the fact that a subsequent settlement between parties has never invalidated a published opinion before, Judge Arnold was forced by his colleagues to vacate his opinion en banc, and in so doing, our power-besotted judiciary has staged a “coup d’êtat.”[3] Trial courts are now free to deposit the United States Reports in the round file, safe in the knowledge that their brethren upstairs will be inclined to ignore their indiscretions.  Power minus accountability equals tyranny.
 
      It is axiomatic that if a citizen enjoys a right, he must “of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” Ashby v. White [1703] 92 Eng.Rep. 126, 136 (H.C.). Therefore, in the determination of what remedies I might have at my disposal for unlawful invasions of rights, a court must, by necessity, determine what “rights” I have left, for to “take away all remedy for the enforcement of a right is to take away the right itself.” Poindex ter v. Greenhow, 114 U.S. 270, 303 (1884).  If a trial judge can willfully disregard “binding” precedent with impunity—truth be told, appellate panels rarely even bother to read the opinions they issue, to say nothing of the actual briefs[4]—“law” becomes whatever the trial judge says it is on that particular day.  The brunt of this judicial triage is borne by pro se civil rights litigants, often forced by brutal financial necessity[5] to argue their own cases.  As Senior Judge John L. Kane of the District of Colorado candidly confessed, “all pro se cases, not just civil rights cases, are treated shabbily and superficially by our courts, both bench and bar.”[6]  
 
     A paradigmatic example of pervasive judicial sloth is Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn). (dismissed for lack of jurisdiction “with prejudice“); cf., Ex parte McCardle, 74 U.S. 506, 514 (1869).  Former Judge Michael McConnell, who taught law at both Harvard and Stanford while sitting on that Court,[7] was responsible for that bloody juridical abortion. And the problem is hardly unique to that Circuit. Federal circuit courts are now de facto certiorari courts,[8] wherein the “review” of appeals filed by disfavored litigants routinely take less than ten minutes.[9]  
 
Whenever a judge can “create an underground body of law good for one place and time only,” Anastasoff,223 F.3d at 904, it literally ceases to be law.  When a judge of an appellate court can sit in judgment of a matter in which he is a defendant in tort under a theory of law that has been recognized as viable in a sister Circuit and none of his colleagues even raises so much as an eye brow, cf. e.g., Tumey v. Ohio, 273 U.S. 510, 523 (1927); Dr. Bonham’s Case [1610], 8 Co. Rep. 107a (K.B.), one is left to wonder as to why we have any need for “professional” judges at all.  If the United States Reports barely qualifies as even a polite suggestion, one is left to wonder what is left of the rule of law.
 
     In judge-speak, “we have to follow precedent” translates into “we really, really, really want to follow this precedent, because it gets us to the outcome we want.”  Judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as they are writing it to suit their personal preferences, “con stantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent”—a process Judge Posner acerbically characterized as “fig-leafing.” Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008).[10]  
 
     This state of affairs, in turn, implicates Justice Scalia’s acid test for a judicial ruling: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”Arizona v. United States, No. 11-182, Jun. 25, (Scalia, J., bench statement at 6).  Or to rephrase the question in this context, would any Founding Father in his right mind have ratified the Constitution if he knew that he was creating a judocracy, making our judges into our “robed masters?”[11] And, if the opinions of the men who created the Union and the man who preserved it control, the answer must be no. The Second Continental Congress put it this way:
 
If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, that this dreadful authority over them, has been granted to that body.
 
The Declaration of Causes and Necessity for Taking Up Arms, 2nd Continental Congress (U.S. Jul. 6, 1775).  As Abraham Lincoln rightly intoned, “No man is good enough to govern another man, without the other’s consent.”[12] And, read in pari materia, the Declaration of Independence and Constitution establish the limits of that consent.  While stare decisis is more likened to a cor set than a straight-jacket,[13] I would daresay that no rational being would ever consent to a grant of judicial power so broad that a tribunal could disregard precedent without cause.
 
     As Suetonius duly records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.”[14] Our predicament is even worse: We can read the laws and court opinions interpreting them until we go blind, but can’t hope to rely on them. When judges are free to depart from established legal principles, “the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions.”[15] We literally cannot plan our affairs with confidence or conform our behavior to the law, as “law” becomes unknowable and ad hoc.  The Constitution depends on a judiciary prepared to issue rulings “that go against the judges’ policy preferences,” Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting), as liberty can find “no refuge in a jurisprudence of doubt,”Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992)—which is what, in fact, you and your colleagues have bequeathed unto us.  As such, I ask:
 
Is even a jot or tittle of the Bill of Rights I can confidently rely on?
 
    I would appreciate your thoughts on the matter if you are inclined to share them.
 
Regards, Ken
 
ENDNOTES:
 
1]  United States v. Janotti, 673 F.2d 578, 614 (3d Cir. 1982) (Aldisert, J., dissenting; quoting Montesquieu, De  l‘Esprit des Lois (1748)).
 
2] Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000). 
# Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).  As Judge Danny Boggs of the Sixth Circuit wrote, “[t]here is no strictly legal—let alone philosophical—justification for the practice,” Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 Green Bag 2d 17, 19 (2000), of issuing so-called “unpublished” opinions devoid of precedential effect
.  
3] Over time, the procedural safeguards of mandatory Supreme Court review, pub lished written appellate decisions with binding effect, and in some cases, even written appellate opinions at all, have been eroded to the point that the federal statutory right to a meaningful appeal has been effectively eliminated. William Graberson of the New York Times observes:


With the Supreme Court giving full review to no more than 200 cases a year [today, it is closer to 80] and the highest courts of many states also limited in the number of cases they can hear, some legal scholars say, the increasing use of abbreviated review procedures by intermediate appeals courts means litigants are quickly losing the right to meaningful appeals.
One measure of the abbreviated treatment given to many cases, some judges and scholars say, is a sharp decline in the number of decisions Federal appeals courts publish in law books. Unpublished decisions do not establish precedents.
In studies of unpublished decisions, two law professors, William L. Reynolds of the University of Maryland and William M. Richman of the University of Toledo, say the rulings are usually so succinct that it is impossible to discern the facts of a case or the reasons for the judges’ ruling.
Court statistics show that Federal appeals courts publish only 24 percent of their decisions, down sharply from 54 percent in 1985. ”It is sort of a formula for irresponsibility,” said Richard A. Posner, the chief judge of the United States Court of Appeals for the Seventh Circuit in Chicago. ”Most judges, myself included, are not nearly as careful in dealing with unpublished decisions.”

 
William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999.
 
5] It is not that pro se litigants are barely-literate Wal-Mart greeters.  Many civil litigants who file in propria persona are actually well-educated, e.g., Steiner v. Concentra, Inc., No. 03-N-2293 (D.Colo. Aug. 6, 2004), In re Marriage of Spofford, No. 06-CA-299 (Colo.App. Feb. 7, 2008) (two Ivy League-educated physicians), and even seasoned attorneys, E.g., Tatum v. Simpson, No. 05-cv-00669-PSF-KLM (D.Colo. Oct. 1, 2007); Mann v. Boatright, No. 07-cv-01044-WDM-KLM (D.Colo. Nov. 5, 2007), Lewis v. Gleason, No. 10-cv-1850-JLK-BNB (D.Colo. Mar. 29, 2011); Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), whereas practicing attorneys are notorious for ‘mailing it in.’ E.g., Judge Tells Colorado Litigants to Brush Up on Their Paperwork, Chronicle of Higher Education, Aug 10, 2006, athttp://chronicle.com/news/article/837/judgetells-colorado-litigants-to-brush-up-on-theirpaperwork (Judge Marcia Krieger of this District of Colorado, reading attorneys the riot act).
 
6] John L. Kane, e-mail (to Sean Harrington), Feb. 3, 2007, quoted in Sean Harrington, Disparate Treatment of Pro Se Civil Litigants in Federal Court: A Justification for Resort to Inappropriate Self-Help? (2007), at http://www.knowyourcourts.com/Archives/Pro_Se_Illusion-/Pro_Se_Illusion.htm (copy on file).
 
7] Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The Observer (Case West. U.), Oct. 31, 2008 (bio).
 
8] William M. Reynolds and William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learn ed Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96); see also, Penelope J. Pether, Constitutional Solip sism: Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009). 
 
9] See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (50 appeals decided in two hours).
 
10] Judges write to defraud. “Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: the decisions are strongly con strained by the legal materials.” Dan Simon, A Psychological Model of Judicial Decision Making, 30 Rutgers L. J. 1, 11 (1998) (citations omitted); see also Jerome Frank, What Courts Do in Fact, 26 Ill. L. Rev. 645, 653 (1931) (“Opinions, then, disclose but little of how judges come to their conclusions. The opinions are often ex post facto; they are censored exposition.”); Martin Shapiro, Judges As Liars, 17 Harv. J.L. & Pub. Pol’y. 155, 156 (1994) (arguing that “[l]ying is the nature of the judicial activity”); see also, Simon, supra, at 8–9 (summarizing the literature regarding the sense of certainty conveyed by judicial opinions and its illusory nature). Lawrence Solan concluded from an analysis of Justice Cardozo’s opinions that not even a judge as forthright as Cardozo was above writing decisions with a false sense of certainty. Lawrence M. Solan, The Language Of Judges 22–27 (1993). Concurrences read like a Brandeis brief.
 
11] George Will, Supreme Court’s Real Priority Is Eradicating Stereotypes, Florida Sun-Sentinel, Jun. 30, 1996, available athttp://articles.sun-sentinel.com/1996-06-30/news/9607010200_1_single-sex-publiceducation-court-s-vmi-vmi-s-uniqueness.
 
12] Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. “Experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” Thomas Jefferson, A Bill for the More General Diffusion of Knowledge (1778), in 2 The Works of Thomas Jefferson 414 (Paul L. Ford ed., 1904).
 
13] In our system, where erroneous judicial decisions cannot be overturned by a mere act of Parliament, stare decisis is an intelligent and nuanced application of existing precedent.  See, Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (Brandeis, J., dissenting).
 
14] Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI.
 
15] 1 Blackstone, Commentaries at *259. Chancellor Kent traced the practice to the earliest records of English law, 1 J. Kent, Commentaries on American Law 480 (2d ed. 1832), and Blackstone,  to“even so early as the conquest.” 1 Blackstone, Commentaries at *69; see also, Slade v. Morley [1602], 4 Co.Rep. 91, 76 E.R. 1074 (K.B). Alexander Hamilton concluded that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 470 (A. Hamilton) (I. Kramnick ed. 1987). In his magisterial work, Justice Story explained that the doctrine of precedent
 

…..is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges.  A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

 
1 J. Story, Commentaries on the Constitution of the United States § 377 (1833).
RGK
 
 
 

10 responses

  1. This is a thorough post on an important subject. I need more time to think about the many points made. However, I want to emphasize that I am extremely pleased to be reminded of the legacy of Judge Richard Arnold. I have previously indicated that I hoped to write a guest post about Judge Arnold, so this post gives me additional motivation to work on that post and to remember Judge Arnold. Elaine Mittleman

  2. I agree that any opinion issued by an appellate court should be treated as binding precedent. I am especially troubled with the ever-growing list of “memorandum” opinions issued by the Nebraska Court of Appeals. Every Truesday it seems the Court is issuing more and more non-precedential opinions and fewer and fewer binding opinions. Since it issues, by far, more opinions than the Supreme Court, the explosion of non-binding case law in Nebraska is increasing problematic.

    Worse yet, the Court has taken to limiting which of these opinions even gets published on the website. Take, for example, this weekly listing of cases: of the 7 memorandum opinions, only 2 were posted on the website. http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/lists/2013-09-17/caMemo17.pdf. Talk about an “underground body of law good for one place and time only.”

    I think I am even more troubled by the fact that many of these cases involve criminal law or the disposition of parental rights of minor children.

    I understand that (sadly) the Court of Appeals is inundated with these cases, which are given priority. I also know the Court of Appeals justices work very hard and are very dedicated individuals. Maybe the volume alone may make it impractical to issue the kind of well-researched, well-drafted opinions it takes to rise to the quality of a published, precedential opinion. But does that make it OK?

  3. Judge Arnold was dead-on (not unusual for him) in his criticism of not-for-publication opinions. But it seems quite a leap for someone to try tell me that because Judge Arnold was right, I use precedent only as a tool to reach the outcome I want to reach. Choosing a preferred outcome and navigating to it by the selective use of precedent would be a much easier job than what district judges (at least the ones I know) do: study the law to try to figure out how the case should come out under the law.

    Maybe I am too insulted to grasp what Ken is trying to say. But “Judges write to defraud.” (see note 10) is not a sentence well-designed to get judges to listen.

  4. Dear Judge Miller,

    I strongly agree with you. I don’t think most federal judges use precedent selectively. A few may, but not the great bulk of us. There a lot of reasons for straight up compliance with precedent, not the least of which is an aversion to reversal. While they are not as bright as they sometimes like to think, Circuit judges know when district judges are playing games with the precedents and curt reversals typically flow therefrom.

    The harder question, at least for me, is this: What should a federal trial judge do with an opinion of a Court of Appeals that is not precedent, but is otherwise exactly on-point? For me, that’s a hard one both as a practical matter and a theoretical matter.

    Thanks for your insightful comment. All the best.

    RGK

  5. CT,

    Your last question is an important one,”Maybe the volume alone may make it impractical to issue the kind of well-researched, well-drafted opinions it takes to rise to the quality of a published, precedential opinion. But does that make it OK?”

    Here’s another important question: In an appellate court that sits in panels of less than the full court, why should a decision of the majority of the panel, but less than a majority of all the judges, ever be regarded as having the value of precedent?

    All the best.

    RGK

  6. With all due respect, Judge Miller, I would remind you that I am merely the messenger; both scholars and your learned colleagues have reiterated this distressing fact so often that a seriatim recitation of same would read like a Brandeis brief.

    The problem of corrupt judging is, frankly, as old as the judiciary itself. Codex Hammurabi adopted a one-strike policy, removing the corrupt judge from the bench and imposing a fine of twelve times the judgment. Herodotus informs us of a Persian vassal lord who turned a particularly corrupt judge into a piece of upholstery, appointing his son as his replacement.Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192. Alfred the Great reportedly executed forty judges in one year, Peter Hughes, Georgicum: Or, A Supplement to the Mirror of Justices 6 (1716). and Britain’s Chief Justice Robert Tresilian was hanged for issuance of executive-friendly decisions. John Campbell, 1 The Lives of the Lord Chancellors and Keepers of the Great Seal of England 294 (2d ed. 1846). The British solution to this problem was the jury trial, coupled with the grant of judicial sinecures quamdiu se bene gesserint, Act of Settlement [1701], 12 & 13 Will. 3, c. 2, §3 (in plain English, “during good behavior”). We adopted it in name only, as no domestic court would ever actually enforce the Good Behavior Clause of Article III. As I suggest, this is a function of corrupt judicial self-interest.

    Scholars of the status of Karl Llewellyn observe that when judges don’t like a law, they interpret it out of existence, and when they can’t do that, they indulge in fabrication of fact, stating that they manhandl[e]

    “… the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach. … “[s]uch action leaves the particular point moderately clear: the court has wanted [that result] badly enough to lie to get it.”

    Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133, 135 (1960); accord, e.g., Richard A. Posner, How Judges Think 144 (Harv. U. Press 2008).

    Every judge knows what is going on because it is indulged in regularly, and when a losing judge complains, we tend to hear about it. By way of comical example:

    “I have read, and re-read, and re-re-read, the majority’s opinion. I don’t know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the most factually misleading and legally pernicious cases to be produced by this Court . . .

    If there is any light to be found in the majority’s opinion, it is in the fact that it did not actually address the parties’ legal arguments. I suspect it was because the majority opinion could not do so without either issuing an opinion unfavorable to the hospital, or issuing an opinion that was more factually and legally wrong.”

    Riggs v. West Virginia University Hospitals, Inc., Case No. 33335, 007.WV.000109 ¶¶ 159, 225 (W.Va. 2007) (Starcher, J., dissenting)

    Still, the most incisive abstract analysis of this phenomenon comes from the agile mind of a then-obscure Oxford graduate student, asserting that the Supreme Court’s record of poor judicial craftsmanship

    “is at least partially attributable to the enormous power that Justices possess and the attendant temptations that they face. U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistible. The Justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the Justices are likely to forget that they are judges and that their Court is a court. Their concentration on end results leads them to neglect legal means: It leads them to neglect the importance of basing all rulings on conventional sources of law.”

    Elena Kagan, The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method (unpublished Master’s thesis; Apr. 20, 1983). As Jefferson wrote, “Our judges are as honest as most men and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps.” Thomas Jefferson, Letter (to William C. Jarvis), Sept. 20, 1820 at 1. If you gave anyone the kind of power over others that would test the virtue of a saint, it is not a question of if s/he would abuse it, but when. Of course, when Dean Kagan testi-lied before the Committee, she ran from that brutally honest assessment in terror….

    As Judge Kozinski concedes, “Judicial ethics, where it counts, is hidden from view, and no rule can possibly ensure ethical judicial conduct.” Alex J. Kozinski,The Real Issues of Judicial Ethics, 32 Hofstra L. Rev. 1095, 1106 (2004). And In a land where jurists are increasingly reduced to politically-palatable mavens of mediocrity, Kozinski is a shining star of intellect and candor:

    “Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or … the press” also means the Internet, and that “persons, houses, papers, and effects” also means public telephone booths. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

    It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.”

    Silveira v. Lockyer, 328 F.3d 567, 568-69 (9th Cir. 2003) (Kozinski, J., dissenting from den. of reh. en banc; citations omitted).

    As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

    “Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

    Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990), available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90f-ultimate.pdf; see also, e.g., Alan Dershowitz, Letters To a Young Lawyer 10 (Basic Books 2001) (“You will be amazed at how often you find judges ‘finessing’ the facts and the law.”).

    I ask you gentlemen to recognize that you are not taking issue with me so much as you are your learned colleagues and well-respected scholars. While I daresay that no one is particularly interested in what yours truly thinks, i would respectfully submit that their admissions carry some weight. In certain classes of cases, I can predict the outcome of a close case by only being told which Party put the judge into office. And in cases asking to decide the power and perquisites of the judiciary, judges ALWAYS vote to enhance their power.

  7. Dear Judge Kopf:

    I would suggest that a reliable litmus test for when a judicial opinion is adequate has already been proposed by your learned colleagues:

    “An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid.”

    Wisconsin v. Allen, No. 2010-WI-10 (Wis. 2010), slip op. at ¶ 79 (internal quotation omitted). Lord Chief Justice Goddard adds: “Time and again this court has said that justice must not only be done but must manifestly be seen to be done. …” R. v. Justices of Bodmin, 1 K.B. 321, 325 (1947).

    Most modern judicial decisions fall egregiously short of this reasonable expectation, and some of your colleagues are candid enough to admit it in open court, as evidenced by this remarkable exchange in a trial transcript:

    “THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
    MR. WINEBRAKE: Well, we concede—
    THE COURT: It’s instructive on what they’ll do without much thought.”

    Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006).

    This is what seemed to trouble the late Judge Arnold. With respect to unpublished opinions, our federal courts’ work product is so uniformly abysmal that Chief Judge Alex Kozinski of the Ninth Circuit recently described it as “sausage,” unfit for human consumption. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004. if you are forced to consume maggot-laced juridical dog-food, you have a right not to be happy about it. And in some cases, the outcome may well have been procured via bribery.

    You may recall the recent resignation of Chief Judge Ed Nottingham of the District of Colorado, in a scandal involving high-priced hookers. But what didn’t make the news was that his then-wife had full and unfettered access to the family finances, and according to his EIGA forms, he had no material source of income or wealth other than his sinecure. Now, as a CPA, I know that it is damn-near-impossible to hide half your salary from your wife if that is your only source of income, which begs the question of where he managed to get enough money to pay courtesans more than $1,000 a week for their sexual services. By a process of elimination, the only possible source was bribes, either in cash or in-kind. And while he really needed the money that he would have received in retirement, he resigned and gave it up. Whereas hiring a prostitute was a petty offense in Denver, a judge taking bribes would cause all sorts of problems.

    Like cops, doctors, and Mafiosi, judges have a natural tendency to circle the wagons around their wayward colleagues. By way of example, as the Galveston Daily News editor Heber Taylor caustically observes in ‘connecting the dots’ regarding disgraced United States District Judge Samuel B. Kent:

    “In 2001, there was grumbling about favoritism in Kent’s court on Galveston Island. The Southern District removed 85 cases from the court. The attorney on all 85 was Richard Melancon, Kent’s close friend and the host of the reception for the judge’s wedding.

    The judicial system looked into it and moved the cases. The judges in charge told the public the reason was a heavy caseload.”

    Heber Taylor, Judicial Discipline Needs a Full Probe, The Galveston County Daily News (TX), May 15, 2009.

    That’s right: Judges of that Circuit actively participated in what seems to be a cover-up.

    Empirical evidence suggests that prior relationships have a profound effect upon how judges rule in particular cases. By way of example, in performing a comprehensive analysis of judicial decisions in the state of Louisiana, Vernon Palmer of Tulane recently vindicated the conventional wisdom that Americans really do have the best judges money can buy:

    He looked first at cases in which no one involved in the lawsuit had ever made a contribution, before or after the suit was filed, to establish a baseline. Some judges tended to vote for plaintiffs, others for defendants.

    Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when
    both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing.

    “It is the donation, not the underlying philosophical orientation, that appears to account for the voting outcome,” Professor Palmer said.

    Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely
    to do so.

    “The greater the size of the contribution,” Professor Palmer said, “the greater the odds of favorable outcomes.”

    Adam Liptak, Looking Anew at Campaign Cash and Elected Judges, N.Y. Times, Jan. 29, 2008, available at http://www.nytimes.com/2007/08/01/us/29bar.html (subscription service); see also, Michael J. Goodman and William C. Rempel, Juice v. Justice, L.A. Times, Jun. 8-10, 2006.

    Harvard’s Alan Dershowitz observes:

    “It is widely known that many state court judges and some lower court judges [that’s right: FEDERAL TRIAL JUDGES!] play favorites among litigants and lawyers. Roy Cohn once famously quipped, “I don’t care if my opponent knows the law, as long as I know the judge.” In the old days, it was financial corruption — cash changed hands. Then it became the “favor bank,” in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of
    Boston, New York, and elsewhere.”

    Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press, 2001) at 116.

    Given this evidence–and I have barely scratched the surface here, on grounds of brevity–can anything short of a proper appellate opinion with precedential effect ever be sufficient to persuade the loser that s/he received a fair shake?

  8. Mark,

    Thanks for your ironic comment. It made me smile, and brought to mind a bow tie.

    I am sure Richard would have been pleased by the Arkansas Supreme Court’s decision. I think he would have also been amused that West did not publish the opinion.

    All the best.

    RGK

  9. Elaine,

    When you have time from your busy practice, I look forward to your guest post and your correspondence with Richard on this subject. All the best.

    RGK

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