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).


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