That's the title of this Atlantic article. And here's another article, this time by the N.Y. Times, about the traps of telling your opponent to be civil:
Mannered civility, in other words, can operate as a trap: order without justice, comity without commitment. It can pit you against an opponent who will happily fight dirty while insisting that you abide by Queensberry Rules.
Today's 11th Circuit en banc denial, in which Judges W. Pryor and Newsom attack Judge Rosenbaum's opinion for not being civil, reminded me of these articles. Judge Rosenbaum wrote a dissent in which she states her view, which was joined by three other judges (Wilson, Martin, and J. Pryor). She wasn't being personal, and she even feels the need to apologize to Judges Pryor & Newsom and says that her dissent isn't personal:
I am truly sorry that Chief Judge Pryor and Judge Newsom seem to have taken my concerns personally. I do not believe this dissent to be personal. I have great respect for all my colleagues, and I value this Court’s collegiality. But I also have great respect for the rule of law and the need for our Court to maintain its legitimacy. And I don’t agree that defending these things or pointing out what I think is wrong with Keohane and explaining why I view it as such a big problem makes me “[un]collegial[]” and “[un]charitable,” see Newsom Op. at 22, or is an “attack[ on] . . . the integrity of judges or their commitment to the rule of law . . . [or] the legitimacy of this Court,” W. Pryor Op. at 5. Nor do the labels and characterizations the W. Pryor and Newsom Opinions feel a need to impose provide a good enough reason to remain silent in the face of the threat Keohane represents to our judicial norms. I am aware of no other way to oppose what I see as the failure of our Court to require the Keohane panel to comply with the prior-precedent rule, other than by writing a dissent that candidly discusses that problem and its significance.I respect Judges Pryor and Newsom a great deal. They are two of the smartest judges in the country. And they are beautiful writers who often use colorful language. So I don't see why they are so upset that Judge Rosenbaum uses the very same words and arguments that they have used in numerous opinions. Do they feel the same way about Justice Scalia's opinions when he went after Justice Ginsburg or his other colleagues? Here are some examples from the L.A. Times of Scalia's opinions:
When the U.S. Supreme Court ended its term July 1, Justice Antonin Scalia was more vindictive and isolated than ever. As the court’s most publicly confrontational justice, he repeatedly berates his colleagues. “The court must be living in another world,” as he put it. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”
*** Besides biting personal rhetoric, Scalia’s opinions sound certain constant refrains. Positions he disagrees with are typically derided as “demonstrably false,” “incoherent” and “terminal silliness.” They are invariably debunked as acts “not of judicial judgment, but of political will.” He is just as likely as GOP presidential contenders Patrick J. Buchanan or Bob Dole to decry the Supreme Court’s “judicial dictatorship"--in spite of the fact that seven justices were appointed by Republican presidents.
Attacks against an opponent's writing style or arguing for civility is just a distraction from the merits.
9 comments:
To answer your question about Justice Scalia, I would say yes, what Newsom writes: More often than not, any writing’s persuasive value is inversely proportional to its use of hyperbole and invective. applies equally to Justice Scalia's colorful dissents/opinions as well.
And if I recall correctly Scalia's most famous dissent (Morrison v. Olsen) is not famous for its use of "hyperbole and invective" but for its clarity of analysis.
You know what's really a distraction from the merits? Hyperbolic, over-the-top personally insulting rhetoric, especially on such a ridiculous issue. OK, so they grant en banc--what kind of majority opinion does Rosenbaum think would issue from the en banc panel? The same result, or worse! What a stupid hill to die on.
A more general judicial writing comment. It seems to be in vogue, particularly with the younger batch of conservative judges, to write in an uber-folksy manner. And in some cases, that helps communicate the legal analysis to the general, non-lawyer public. But judges who use that style a lot need to be careful about which cases to employ this device. It's fine in, for example, contract disputes or tax cases. In contrast, in cases where plaintiffs are alleging serious personal harm (for example), over-folksiness conveys a meta-message that the writer didn't take the case or the person making the claim seriously. So it's a writing device that requires some maturity and judgment about the circumstances in which to deploy it. (I've long thought that 1st Circuit Judge Selya's florid, sesquipedalian style, while the opposite of the current trend of folksiness, can be similarly (mis)used to the same inappropriate effect.)
Agree that the folksiness goes a little overboard these days (and Newsome and Rosenbaum are two of the worst offenders) and also it's inappropriate in some cases. But I'll take that over Selya's style any day. Judicial opinions are
not the place for digging out words nobody ever uses or knows the meaning of.
"I respect Judges Pryor and Newsom a great deal. They are two of the smartest judges in the country."
And which judges don't you claim to respect or think are the smartest in the country?
Some of the language does get a bit personal. Consider this paragraph:
“I am sure each of us believes that we are applying the appropriate standards in determining whether to vote for en banc rehearing. But an objective analysis suggests we are not. So we need to recalibrate. I urge our Court—and each of us individually—to carefully and objectively reexamine this vote and to truly reflect on the dangers of condoning panel opinions that contradict our prior precedent while nonetheless claiming to follow the prior-precedent rule.”
Judge Rosenbaum and the panel have different views of what Thomas holds. The panel reads it one way. She reads it another way. She's entitled to believe that the panel's reading is clearly wrong and to say so in as strong terms as she feels appropriate. She can also say that the panel's reading of Thomas is so inconsistent with the actual decision that it reflects a disrespect for precedent. This happens all the time. Good dissents skewer the majority's reasoning, explain why the error matters, and leave the reader to wonder how the majority got it so wrong.
The dissent takes a weird turn, though, when it argues that because dissent's reading is so clearly right, the rest of the court not only is required to take the case en banc, but that each judge should personally feel badly about not doing so. The admonition to "individually ... truly reflect" sound personal and scoldy, and seems to me at least, seems to cross the line between arguing about opinions and arguing about people.
I agree with the broader point that complaints about civility are usually distractions. I think the personal turns in Judge Rosenbaum's dissent are also distracting, and deserved a response.
To each judge's credit, Judge Newsom's concurrence responds directly on substance, and Judge Pryor's concurrence responds to the process point on en banc rehearing.
There was nothing at all uncivil about Rosenbaum's dissent. The majority judges (and shame on you Luck for signing onto an opinion that says "untrue"), are the ones doing the attack and twist the dissent into something it is not. Very Trumpian.
Elections have consequences and this is the reworking of the judiciary that the extremists have long sought. It would take too much time and effort to have any respect for precedent, and they have so much to accomplish. This is only the positioning of the pieces on the board, so much more to come.
Rosenbaum knows this and is not going to let them do it cart blanch. Good for her....she is ten times smarter than Pryor...sadly she is just outnumbered by a bunch who care more about an agenda than they do the law.
I'm firmly Team Rosenbaum. These issues don't occur in a vacuum. The "conservative" judges on the court have a long history of going after the "liberal" judges - in particular Barkett, Wilson, Martin, and Rosenbaum. So Newsom and Pryor's complaints ring very hollow.
And you should read some of Scalia's opinions when he went after O'Connor. And not for the "clarity" of his reasoning.
But we can agree to disagree.
Implicit gender bias, in my view.
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