If you attend law school, you will encounter on exams what is described as a "theory question". I have a hard time describing theory questions in a manner that does not sound cynical, as I happen to have developed a very cynical take on them. Although ostensibly designed to test your understanding and application of legal theory, if you don't know this up front you will quickly learn that maximizing your grade on a theory question usually involves conforming your theories to what the professor wants to hear. If the professor believes that the President is too powerful and must be kept in check by Congress, that's what you write on the exam. Oh, the professor may claim that the test will be graded without respect to whether or not you agree with him, but it's a distinction without a difference - he won't grade you down because you disagree that Congress should be the most powerful branch of government; he'll grade you down because any other theory is wrong.
I am reminded of theory questions by Ann Althouse's editorial in the New York Times, A Law Unto Herself, an editorial that she would presumably grade as an "A" or "A+" if written by one of her students at the University of Wisconsin Law School. It should have been easy for her - after all, her primary areas of expertise are civil procedure, constitutional law and federal jurisdiction. Now, I'm not saying that had I received this editorial as an essay from a 2L or 3L I would necessarily have given the student a low or failing grade. But that doesn't mean it's good.
The first noteworthy aspect of the editorial is that Professor Althouse pretends to be judging the issue based solely on issues of procedure, and not on the basis of the outcome reached. And you need to look no further than her blog to see her insist that she was not approving or disapproving the outcome, and her very scholarly refutation of those who believe otherwise:
I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.Well, gee... I'm convinced. So how might people have come to the conclusion that a law professor and expert in civil procedure was taking sides, despite her insistence that she was not? Perhaps it is their experience with statements like these:
In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208 , 41 S.Ct. 451; United States v. American Ry. Exp. Co., 265 U.S. 425 , 44 S.Ct. 560; United States v. Holt State Bank, 270 U.S. 49, 56 , 46 S.Ct. 197, 199; Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239 , 55 S.Ct. 746; cf. United States v. Williams, 278 U.S. 255 , 49 S.Ct. 97. [Helvering v. Gowran, 302 U.S. 238 (1937)]Perhaps I'm being unfair, and Professor Althouse has a long and distinguished history of attacking the many state and federal cases which assert this rule; but if this is the first time she has raised the question of how courts "ignore their obligations" by focusing on outome over proper process, it invites the question - why now?
Then there is her attack on the Judge's sentence, "There are no hereditary kings in America and no powers not created by the Constitution." Professor Althouse describes that sentence as a "juicy quotation that represents "sheer sophistry."
The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.But what the Judge actually wrote was this:
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.The Judge's statement may be "juicy" when taken out of context, but all the judge is actually stating is that the President's powers derive from the Constitution. It is reasonable to assume that Professor Althouse has read the opinion she criticizes, so it is fair to assume that her misrepresentation of the quote is intentional, and it is fair to further infer that her comments are based upon her taking offense at the judge's ultimate conclusion.
Futher, there is the question, what exactly is wrong with there being a "juicy" quote in a judicial opinion? Here's a "juicy quote" that is often used and abused by pundits: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Again, I have to assume that a constitutional scholar like Professor Althouse is familiar with the rhetorical flourishes judges often choose to include in their opinions. Again, in fairness, I have not followed Professor Althouse's writings and choosing this time to speak out would only suggest partisanship if Professor Althouse has no history of criticizing such "juiciness" in judicial opinions - although her own use of quotations suggests otherwise.
In terms of substantive complaints, Professor Althouse gets off to a weak start:
Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness)Perhaps Prof. Althouse mentors the footnote editors for her school's law reviews, such that this "carelessness" shocks her, but to me she's nitpicking, and engaging in the logical fallacy of poisoning the well. I can't help but also note that she does not condemn Chief Justice Warren for producing such a "juicy" quote in the first place.
In relation to her call for careful judicial decisions which demonstrate a concern for accuracy, completeness and impartiality, I agree with Professor Althouse.
... let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.I agree that both branches should seek to observe and respect their own obligations under the law and Constitution - and both the Judge and the President swore oaths to uphold the Constitution. But irony? Perhaps it's that we have different expectations, but from where I sit Professor Althouse is describing hypocrisy.
I disagree with Professor Althouse that a trial court decision, if poorly reasoned, sends the message that there are no good arguments in support of the outcome. I think it is fair to infer bias from her castigation, "It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush." From her claimed perch on the fence between the two sides, it is interesting that Professor Althouse finds nothing to criticize on the President's side - she seems satisfied that his oath of office and covey of advisers would steer him away from any disingenous or self-serving stance - and has a history of pecking at faults by the judge which may exist only in her imagination.
Professor Althouse also suggests that the decision represents (or, at best, can't be distinguished from) judicial activism,
So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.Why do I suspect that Professor Althouse spends little time reading federal trial court opinions, and little to no time reading state trial court decisions? I don't want to be the one to cause the scales to fall from her eyes, but despite its many obvious faults this is actually a pretty thorough, substantive opinion for a trial court. I don't want to paint with too broad a brush - there are many excellent trial judges who regularly write opinions which meet or exceed the quality of typical appellate court decisions. (For that matter, there are plenty of appellate decisions, often unpublished, which would make Judge Taylor's opinion look good.)
So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.
In fact, the appellate courts in some ways reward trial courts for writing cursory opinions, or no opinion at all. In Michigan, a trial court is not required to write an opinion when resolving a motion for summary disposition. A trial court which writes an opinion may well be affirmed, even if incorrect it in its analysis, under the "no harm, no foul" principle described above - it won't be reversed if it reaches the right result for the wrong reason. But if the judge doesn't pen so much as a word, simply granting or denying the motion, the chances of reversal do not appear to increase, while the chances of being corrected in the course of an affirmation drop to zero.
It's also interesting that Professor Althouse implicates judicial activism, without actually accusing the judge who penned the opinion as being activist. Again I'm with the Professor in believing that judges should take care to avoid not only bias, but the appearance of bias. But if it can truly be said that a careless trial court decision "helps those who have been arguing for years about result-oriented, activist judges," unless she's arguing that this is the straw which breaks the camel's back, this one opinion changes nothing.
Perhaps the most unfortunate part of the editorial is that Professor Althouse spends so much time focusing on style, she leaves herself with no space to address the substance of the opinion.
This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.Maybe Professor Althouse should have left out the "juicy" quote from Chief Justice Marshall, to give herself a bit more space to describe the law of standing, why the judge's opinion should be regarded a superficial and incomplete in relation to standing, and maybe even an opinion as to how the issue of standing should have been resolved (assuming she's comfortable climbing off of the fence). Would the Professor describe it as "ironic" if an editorial that pretends to condemn superficial legal analyses that give the impression (even if false) of partiality were itself superficial and seemingly partisan?
I guess in the end, if I were a law professor, I would be inclined to downgrade Professor Althouse's essay even though if you simmer off all of the fat and vitriol, I agree with her primary arguments for respect of the judicial process, judicial professionalism, and greater care in the drafting of judicial decisions at all levels.