Judges Matter, Part 196

Via Professor Orin Kerr at Volokh Conspiracy comes this example of a judiciary in trouble. This is from a dissenting judge in a recent Sixth Circuit case about searches and seizures of email (PDF). The en banc decision dismissed for lack of ripeness. One of the original panel judges dissented and absolutely loses his shit:

While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

There are a couple of things to note here. First, I'm amazed at the disdain that this judge shows for the judiciary in general, and the Supreme Court in particular. Of course judges disagree with each other and with the Supreme Court. In fact, all lawyers who are litigators are wrong half the time---that's the point of an adversarial system (keep that in mind the next time you hire one!). Usually, judges---especially federal appeals judges---exercise a little dignity and decorum in disagreements with other jurists. This judge has shamefully added his voice to those who question our entire system of justice.

Second, his explicit disagreement with the Heller decision calls into question his ability to fairly adjudicate gun cases that come before him...at least, that's the argument I would make if I were in his court. Note that this is not uncommon in the lower courts. The individual rights view of gun ownership has not penetrated the judiciary to the extent it has the general populace in the past twenty years. Much of the judiciary is having to adapt to a changed worldview, and they don't plan to go about it quietly.

Finally, as the majority notes, when a court dismisses a case because it is not ripe, the court is making no judgment approving or disapproving of the underlying statutes or constitutional claims. They're just saying that there is no justiciable case at this time. It can, of course, come up properly when circumstances change.

posted by Gabriel Malor at 12:26 PM

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