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August 20, 2006
Another legal academic reacts to the NSA decision
Con-Law Prof. Ann Althouse takes the Jimmah Carter-appointed judge to the woodshed for her decision in the ACLU vs. NSA appeal.
I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.
I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...
What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.
I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.
[...]
At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff. I have never seen anything like this. There are many sections left to the opinion, but each contains little more than preliminary verbiage -- quotes from old cases and zingers about how the Framers opposed King George III -- with tagged on conclusions about how "obviously" the Fourth Amendment/First Amendment/Separation of Powers is violated.
[...]
That's not analysis. That's a petulant refusal to take the task of judging seriously. Where is the discussion of hardship and public interest? The judge is so hot to hold the President to what she sees as his constitutional obligations. You'd think she'd take a little more care to give the appearance of adhering to hers.
Ah, yes, arrogant, partisan judges, making it up as they go. My favorite pet peeve, one that got under my skin during the first semester of law school -- and continues to raise my blood pressure in the many years since.
What I love about Althouse's analysis is that it reveals the world-weary cynicism that even center-left members of academia manifest when it comes to the judiciary. Althouse isn't shocked that the Carter appointee is a partisan, Bush-hating hack; she's surprised only that the judge didn't do a better job of hiding her betrayal of the supposed impartial role of the appellate courts.
Posted by Mike Lief at August 20, 2006 01:39 AM
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