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Wednesday, June 01, 2005

Belated self-congratulations; and an example of how "judicial conservatism" differs from "political conservatism"

In February of 2004, I posted (with my usual windy length) about the Fifth Circuit's then-pending consideration of an appeal brought by Ms. Norma McCorvey — perhaps the most well-known plaintiff in the last half century, albeit under the pseudonym "Jane Roe" in Roe v. Wade. Ms. McCorvey, having had a profound change in her personal convictions about abortion, sought to reopen her original case in hopes of reversing the Supreme Court's ruling. My liberal friends over at Burnt Orange Report were terribly concerned that she might win, based on what I thought was a misreading of the fact that the Fifth Circuit had scheduled oral argument on her appeal from the district court's dismissal of her case. They were particularly concerned — unjustifiably so, I thought — that a politically conservative judge like the Hon. Edith H. Jones of the Fifth Circuit might take this appeal as an opportunity to try to reverse (or at least undercut) the Supreme Court's opinion in Roe and its progeny.

Prof. Eugene Volokh's "Where are they now?" post today — inquiring about the later life of famous plaintiffs in constitutional cases — prompted me to follow up on Ms. McCorvey's appeal. And in doing so, I found that I'd missed it when the Fifth Circuit issued its ruling in August 2004 — there was very, very little coverage of the decision in the mainstream media, and only about 25 total "hits" appear on Lexis/Nexis for the ruling.  And I also missed it in February 2005 when the U.S. Supreme Court denied Ms. McCorvey's petition for a writ of certiorari, thereby leaving the Fifth Circuit's decision in place.  McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005). But I'll congratulate myself belatedly on having correctly predicted that the Fifth Circuit would (i) affirm the district court's dismissal of Ms. McCorvey's case, (ii) do so without oral argument, and (iii) do so in a unanimous panel opinion written by the very judge about whom my liberal friends were so concerned, Edith Jones.

The panel opinion relied on slightly different (but equally valid) grounds than those cited by the district judge — mootness (based on the challenged Texas statutes having been repealed) rather than simple untimeliness. And in fact, by basing its decision on mootness grounds, the Fifth Circuit panel avoided the arguable need to consider whether Ms. McCorvey's thirty-year delay in bringing her attempt to re-open her case was "unreasonable" given the facts and circumstances of her case, which in turn arguably would have required both the district court and the Fifth Circuit to perform "a substantive critique of Ms. McCorvey's claims." Judge Jones' opinion for the unanimous three-judge panel, then, is a model example of a key tenet of "judicial conservatism" — deciding an appeal on the narrowest possible grounds, and thereby avoiding unnecessary holdings.

As it happens, however, Judge Jones did take the opportunity to write a separate opinion — concurring with the result of her own opinion for the unanimous panel, but speaking only for herself and not for the other two judges (or for the Fifth Circuit as an institution) — which contains a stinging critique of the factual assumptions that the Supreme Court made in its Roe opinion. Judge Jones' name has sometimes been mentioned as a possible Supreme Court nominee (although less so in the recent past than previously). Were that to happen, she'd certainly be grilled by the pro-abortion forces in the Senate on this concurring opinion, just as (hopefully about-to-be-confirmed) Eleventh Circuit nominee Bill Pryor was grilled after labeling Roe "an abomination."

I haven't always been among Judge Jones' biggest fans, and my own views on abortion as a political and ethical matter, and on Roe v. Wade and its progeny as a matter of constitutional law, are fairly muddled and perhaps somewhat inconsistent. (It's not a topic I blog on much for that reason, and I'm not trying to encourage extended debate on the merits of the abortion issue in my comments, either.) But — like Judge Pryor's vigorous enforcement of the Supreme Court's Roe precedent when he was a state attorney general, despite his profound disagreement with that decision on both personal and legal grounds — this particular appeal, and Judge Jones' participation in it, is a fairly striking example of how a judicial conservative ought to behave when sitting on any of the Courts of Appeals, which lack the fundamental power to overrule any Supreme Court precedent. She could have grand-standed; instead, she cancelled oral argument, putting the case into a lower public profile. She voiced — in an appropriate manner — her legal reservations about the Roe precedent, but she did not permit those reservations to skew the results of the appeal.

I don't deny that there are politically conservative judges who may be judicial activists. But I'm an opponent of judicial activism — regardless of the politics that motivate it or the direction it skews. And to those who insist that all politically conservative judges must necessarily become judicial activists for conservative causes, this result is a pretty strong rebuttal. I've observed, and could probably readily also find examples of, judges whom I know to be politically liberal who've nevertheless adhered to their judicial conservativism, and have dutifully reached results thereunder with which they personally disagree. "I might well support the opposite result," judicial conservatives (of either liberal or conservative politics) will say, "were I a member of the state or federal legislatures, debating and making public policy on this issue." But a judicial conservative recognizes that he or she isn't a legislator. And he or she always remains aware of the respective level and functions of the court on which he or she sits: if a United States District Judge, for example, that role does not include overruling (or circumventing) precedent from the Circuit and Supreme Courts, or if a Circuit Judge, precedent from the Supreme Court.

Posted by Beldar at 03:32 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


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(1) ttyler5 made the following comment | Jun 1, 2005 9:06:48 PM | Permalink

Beldar, while this is not quite the subject you are discussing above:

Clearly, the justices responsible for Roe v Wade, as well as those responsible for the many other supreme court travesties we could name, have over the decades abused their powers and legislated from the bench *precisely because* they have known "judicial conservatism" will work to *preserve* such illegitimate inventions as rules of law.

This is indeed an added incentive for them to legislate from the bench.

But is "judicial conservatism" actually "judicial conservatism" when it upholds an illegitimate abuse of power by the court?

Would not, for example, a true judicial conservative see such inventions as *illegitimate abuses of power* and therefore as *illegitimate decisions*, and would not he or she then be *required to vote to reverse* on that ground alone?

(2) mcg made the following comment | Jun 2, 2005 5:48:07 PM | Permalink

ttyler5, I was going to ask/say the same thing. There is, apparently, among the judiciary a concept called stare decesis (sp?) that restrains them from undoing past decision without significantly compelling reasons. Scalia is sympathetic to the concept, and Thomas less so. Who then is more conservative?

(3) ttyler5 made the following comment | Jun 2, 2005 8:52:49 PM | Permalink

mcg, *stare decisis*, it is Latin for, literally, "to stand by that which is decided", it is one of several anti-tyrannical principles devised to help establish and maintain a fundamental requirement of the rule of law, i.e., that the law must be known ahead of time, and be clear, stable and predictable.

The Latin legal lexicon we have inherited was originally Ciceronian, and recall that Cicero was engaged in a life-and-death struggle with a number of Roman tyrants, including the bloodthirsty thugs and murderers Julius Caesar and Marcus Antonius. Cicero very clearly understood the principle in no uncertain terms.

However, it is "stare decisis", not "stupid decisis" :^D, it *does not mean* that previous decisions cannot be re-examined and overruled.

Concerning whether Scalia or Thomas is more "conservative" according to this measure is, in part, what Beldar is talking about above.

The subject I am hitting on above, perhaps all too politely in a beating-around-the-bush sort of way, is whether decisions which are illegitimate abuses of judicial power (as opposed to legitimate abuses of judicial power) are binding at all on the people or its government, and whether judges appointed by the peoples' represenatives have a moral and metalegal obligation to refuse to enforce such decisions, regardless of which level of the federal judiciary issues them.

If by "judicial conservatism" we mean nothing more than stare decisis, then we have no internal corrective built in to the judicial system for an upper chamber which rejects stare decisis, imposes its arbitrary will from the bench, and then sits back and smokes a cigar while a generation of "judicial conservatives" on the lower benches, committed to stare decisis, does its dirty work for it and enforces the higher court's arbitrary decisions on an unwilling nation.

This is related as well to the question first raised by Jefferson, as to whether our institutional arrangements with regard to the federal judiciary and its powers are the best we can come up with, i.e., if the judiciary won't check itself, how do we check the judiciary?

The original idea of granting the power to interpret the constitution to the Bar and relying on its legal training in ancient concepts of law such as stare decisis has not only failed, it was already a national disaster when Thomas Jefferson still stomped on the terra firma. :^D

(4) leon dixon made the following comment | Jun 3, 2005 7:24:27 PM | Permalink

First of all, I'm glad your workload has slacked off a bit and your posting (which I find of value) has increased recently. Next, views of law can vary. Justinian, for instance, had no use at all for stare decisis and, in fact,forbid it. I don't mean to transform the legal system into a slow rolling legislature by appellate districts, but, the current lockstep, sheeplike, follow the mistaken herd mentality does little right in my view.

(5) Patrick R. Sullivan made the following comment | Jun 4, 2005 6:49:31 PM | Permalink

Anyone know what happened to Dred Scott?

(6) David Blue made the following comment | Jun 5, 2005 6:18:43 AM | Permalink

"I don't deny that there are politically conservative judges who may be judicial activists. But I'm an opponent of judicial activism — regardless of the politics that motivate it or the direction it skews."

How long till, in your opinion, Roe versus Wade has been settled law long enough that judicial conservatives, even on the Supreme Court, ought to uphold it for that reason? And how long till you think that judicial conservatives, including and not limited to those personally opposed to abortion, actually will uphold it just for that reason?

I'm not asking about abortion. (Unless you think it's a special case, legally.) I'm asking about the moral and legal authority that comes from a really consequential decision having been in place for a long time, with Roe versus Wade as the example. How fast do you think the clock is running out on its opponents, and what follows?

(7) Carol Herman made the following comment | Jun 5, 2005 4:10:22 PM | Permalink

Play with a better ruling. David Boise, it seems, is quite famous, outside of the Bush V Gore stuff. And, he wrote a most interesting autobiography. Where he touches base with the NY Yankees' case. And, the anti-trust rule that allowed Major League baseball to be an "exception." Because in 1922 so ruled the Supreme Court. And, even though no other sports franchise in America enjoyed this deliberate "monopoly," for the longest time MLB (major league baseball) sure did!

You bet, while anti-trust laws got written in the 1890s, this exception came to roost in 1972. With the Yankees challenging the League, by signing a $95-million dollar contract with Adiddas. And, the League BIT. And, David Boise IS a genius!

Roe, it is my guess, will continue to stand, because (and I'm a layman, here!) there's no way we're ever going to go back to the back alleys where women would continue to get abortions behind a Wendy's, in some back alley, somewhere. And, there's no way you can assign enough police to stop this stuff. (As hungry as some doughnut eaters are to get cases they can solve by beating up women with sticks.) Ain't gonna happen.

Too bad it's the republicans that keep scaring people, though.

Too bad, too, the most brilliant lawyers are way to few and far between. But thank goodness for Blackmun! Thank goodness, too, for the ways the law proceeds with caution.

As Rehnquist's 33 years on the bench will soon come to an end; he still leaves the structure not only intact; but he worked miracles on discipline within the COMMITTEE of NINE. When they sit to "discuss" the cases they will hear. He brought a businessman's ethic to how cases are brought up and heard. And, this, too, is gonna remain intact for the foreseeable future. Efficiency. It's woven into the fabric.

Roe? Like anti-trust. Where tough cases challenge the best attorneys. When you consider the stakes; that's a good thing.

(8) Carol Herman made the following comment | Jun 5, 2005 4:16:25 PM | Permalink

NOT 1972! The Yankee's challenged MLB in '77, or thereabouts. Because in '72 The Yankees were still owned by CBS.

But laws get challenged just the same.

With Roe, it's just stupid for one side of the GOP tent to chase away the mainstream.

(9) ttyler5 made the following comment | Jun 5, 2005 6:22:06 PM | Permalink

The original Roe decision is not mainstream, anymore than NOW, NARAL, the ACLU, Ted Kennedy and partial birth abortion are mainstream.

Re Roe, the mainstream is very clearly a "supermajority" of conservatives, moderates and liberals between the two tiny extremist poles.

This supermajority mainstream supports strong restrictions on Roe,including parental notification, outlawing of partial birth abortion, outlawing of late-term abortions in general, outlawing of abortions based on genetic trait selections such as eye color, etc, strict regulation of abortion procedures, and a list that goes on and on.

To paraphrase the above post, it is just stupid for the democratic party to continue to allow the tiny minority of abortion radicals to chase away mainstream voters, but the democratic party is presently a party organized upon the principle of allowing left-extremists of all descriptions to chase away the mainstream voters. I mean, for gawds sake look who they have as a chairman! They are headed for a slaughter next year.

But Roe is just one of a very large number of issues which has sparked a general revolution against the federal courts.

To put it another way, I'd hate to be a democratic senator up for re-election next year in states where GOP candidates are making an issue out of the judicial filibuster and the record of the Clinton appointees on the bench.

If the filibusters continue --- and make no mistake about it, the judicial filibusters are being carried out at the behest of the abortion wing of the democratic party over Roe --- I estimate the democrats will suffer a net loss of at least five US Senate seats next year. And I stress the "at least" ...

(10) M. Simon made the following comment | Jun 10, 2005 11:33:22 PM | Permalink


Abortion has been a feature of civilization for 2,500 years, minimum. I do not think passing laws is going to fix that. Whatever so called "new technologies" have proved the fact that abortion takes a life was clear to the Greeks 2,500 years ago. By the time Jesus got here the facts were well known. Greek culture was widespread in Israel. Yet Jesus never mentions abortion as one of his concerns. Either the Jews were not having them (doubtful) or it was not as important to Jesus and his chroniclers as other issues.

As to PBA the Supreme Court requires that the laws have a medical necessity out. So far no such laws has been passed (as far as I know). i.e The laws passed are not about PBA. They are about creating election issues.

In any case the abortion rate is about 25 per 100 live births. That is enough to support a thriving black market. So it will not be outlawed.

Now if we could just figure out alcohol prohibition. (I coulda meant drug prohibition, you decide).

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