When the acronym that shall not be spoken applies to federal district judges

Most of the time, federal district judges should not write stuff that is unnecessary. First, as a general rule, nobody cares much what we write. Second, most of what we write is not worth caring about. Third, when we write stuff that is unnecessary we begin to look as if we are trying to influence something beyond the case at hand–and that is manifestly not our job. With that perfectly unnecessary introduction, I urge you to read the erudite piece by the venerable Lyle Denniston, entitled “Constitution Check: Is Obama’s new immigration policy constitutional, or not?


A tip of my special baseball cap to Howard Bashman and How Appealing.

9 responses

  1. Judge Howell is a Columbia Law grad and was appointed by President Obama.
    Her dicta is exactly why so many people feel federal judges are political creatures.

  2. Anon. Seems odd you did not mention appointment of PA Fed Judge by Bush 2, particularly given his record for being removed from cases by 3rd Cir. for somewhat excessive enthusiasm. Is it attending VA LS that saved him from criticism or the fact he was on your side of the political fence. His dicta was at least as obiter as Judge Howell’s. They both should have stayed out of issue. However it some times appears judges are competing for coverage from the cable news networks,

  3. I certainly agree that this judge was way off base reaching out to decide the constitutional issue, that absolutely did not need to be decided or probably even mentioned in that case. While it doesn’t rank up there with Judge Vaughn Walker’s shameful antics in the Proposition 8 case (which should have been condemned by those on either side of the SSM debate), it is still bad.

  4. I read the article suggested by Judge RGK too.

    This caught my eye:

    The Pittsburgh judge’s remarks about the lack of presidential power, and the Washington, D.C., judge’s volunteered commentary on that subject, could help to clarify the lines or continuing constitutional combat over immigration policy, and thus could have an education function.”

    We already have law schools and law journals for that.

  5. Matt to which judge are you referring, difficult to see how DDC judge could have avoided mentioning the issue when dealing with standing.

  6. I’d go even further. The district judge I clerked for – an excellent and somewhat taciturn judge – said to me, more than once, after reading drafts I had prepared for him, that district court opinions don’t need to be law review articles. I silently disagreed at the time, but after 20+ years of litigation and appellate practice, I now see the wisdom in his statement. District court judges need to give parties decisions as quickly and efficiently as possible. Writing about issues not involved in a case, and even writing too much about issues actually raised in a case, slows down the wheels of “justice.” District court decisions should include just enough to let the parties and the appeals court know the factual and legal basis for the decision, and no more. Any more is vanity (and might even be the vanity of a wet-behind-the-ears law clerk).

  7. I like Lyle. In fact, with all due respect to the judge, I think Lyle is the best legal writer for public (as opposed to legal profession) consumption on the planet. So it irks me a little to say that I think he’s engaging in a little bit of professional vanity if he thinks that there is a possibility that a legal opinion can be educational to the general public. First, the general public is hard pressed to name the justices of the supreme court. Second, most legal opinions today are so long, so opaque, and so heavily footnoted that lawyers don’t understand them, let alone the public. Remember the good old days when Justice Holmes could write an opinion like Missouri vs Holland that was a verbose five pages long? Yeah, nobody alive remembers that.

  8. Kenneth, I thought some of the Supreme Court remembered Missouri v Holland in the Bonds case in June, though the new version of the Bricker Amendment was not yet enacted by the Court.

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