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.

The current conservative judicial mind and the idea of restraint

I must be brief. I am off to Omaha early this morning for a fun-filled day of criminal law. I will hold eight sentencing hearings. All of the defendants are likely to receive prison time.

As a federal trial judge, I read tea leaves and follow precedent. Almost never am I called on to apply my own theory of Constitutional adjudication. That said, it is helpful to understand what the “big boys and girls” are thinking. That is particularly true of the “big boys and girls” who are conservatives. After all, they tend to dominate the current makeup of the Supreme Court and the Courts of Appeal. In particular, the idea of “judicial restraint” that allegedly animates so many “conservative” decisions is a notion that is, at least for me, desperately in need of clarification.

With that in mind, I heartily recommend Joel Alicea’s* short essay entitled Real Judicial Restraint in the Fall 2013 issue of National Affairs. It is a readable and cogent explanation of the separate concepts of “judicial restraint” that have moved, are now moving or should move judicial conservatives. Alicea has his favorite, but it is the taxonomy that I find most helpful. The essay is well worth reading if you desire to gather intelligence on the current conservative judicial mind and the notion of restraint.


*The author is a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. His piece receives praise from Ed Whelan the prominent conservative legal commentator.

PS As is so often the case, I give thanks to Howard Bashman and How Appealing for the tip.

%d bloggers like this: