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Thursday, March 16, 2017

This Is What Is Wrong With The American Judiciary

State of Washington v. Donald J. TrumpNo. 17-35105, 2017 WL 992527, --- F.3d ---- (9th Cir. Mar. 15, 2017) (Bybee, J., dissenting from the denial of reconsideration en banc, and joined by Kozinski, Callahan, Bea, and Ikuta, JJ.):

Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

Id. (emphasis added).

I do not romanticize the role of the judge or the virtue of judges in general, and I do not think others should do so either.* The job of judge carries duties and difficulties. But many of these difficulties inhere in the judge’s role, and if a judge is not up to the task, then he should not take on that role and then complain.

For example, judges, like anyone else in any other role, want a reasonable amount of time to meet their responsibilities. So a compressed briefing and argument schedule is onerous. But all temporary restraining orders are onerous in just this way. That being so, it is difficult to credit why this all too common fact of judicial life is among the “worst conditions imaginable.” Judge Bybee’s overstatement here is palpable.

Even more problematic, Judge Bybee states that “intense public scrutiny” is another of these “worst conditions imaginable.” That is a problem. Judges have extraordinary public power. They are supposed to be scrutinized, and that includes scrutiny by the wider public. The only legitimate question is whether the scrutiny is fair, not how “intense” it is. The First Amendment does not end at the courthouse door, nor do parties’ First Amendment rights end because they find themselves dragooned into litigation.

Moreover, it is wholly out of ... bounds for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissents language is to chill constitutionally protected speech.** It amounts to a directive, from the court*** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Judge Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

Article III judges are protected by lifetime tenure in office and salary which cannot be reduced by Congress.**** They are not supposed to be insulated from “intense public scrutiny.” Nor should judges instruct litigants before them to limit their constitutionally protected out-of-court speech, and to encourage such limitations under the threat of what is or is not “effective advocacy.” That Judge Bybee, along with Judges Kozinski, Callahan, Bea, and Ikuta, who joined Bybee’s dissent, think otherwise is more than a problem: it is an American disaster.


PS: Welcome Instapundit, Chicago Boyz, and Josh Blackman's Blog readers.

PPS: For an entirely different point of view, see Jonathan H. Adler, The most important part of Judge Bybee’s dissent from denial of en banc review in Washington v. TrumpThe Washington Post—Volokh Conspiracy (Mar. 17, 2017),

* But see Seth Barrett Tillman, Judge BoggsThe New Reform Club (Sept. 7, 2016, 2:11 PM). [here]

** To put it another way, one might ask if the dissents language here would deter a reasonable person (i.e., a litigant) of ordinary firmness and fortitude from expressing constitutionally protected speech. Or, one might ask if an administrative law judge or an administrative appellate body had issued such a view in an opinion, what our Article III courts might have done with such language on appeal? 

*** Or, more accurately, from 5 federal appellate judges. 

**** Article III judges have additional supports. Generally, they are supported: (1) by lay juries (who are virtually unpaid); (2) by Article I judges (including Magistrate Judges and Bankruptcy Judges); (3) by special masters, arbitrators, and mediators; (4) by generous allowances for personal staff (including up to 4 law clerks per judge); (5) by other courthouse staff (including, e.g., probation officers, stenographers, and librarians); (6) by the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission; and (7) by excellent electronic and physical facilities, including separate entrances and private bathrooms for the judges. All of which are secured by the regular presence of United States marshals and other security staff. Few state court systems can support their judges in the grand manner federal judges have come to expect. The all too frequent complaints of our federal judiciary have a strange unreality about them. One day the taxpayers may notice. See generally Seth Barrett Tillman, Courthouse Security ChecksThe New Reform Club (Aug. 7, 2016, 7:33 AM). [here]

Citation: Seth Barrett Tillman, This Is What Is Wrong With The American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM),


Tim Kowal said...

Agreed, Seth. Though knowing what I do about some of these excellent judges, I will hope that they intended these comments as directed at the bar, as comments on advocacy before the court, and that the notes about "public discourse" were stray comments and not intended to tell Americans how they should talk to one another.

But again, to the extent the comments are taken more broadly than that, it is quite true there is an ominous mood if not reality of judicial supremacy that has been creeping for some time, and that these comments fit within it.

Seth Barrett Tillman said...


It is wrong for judges to tell members of the bar (or anyone else) what they should say out of court in regard to matters unrelated to the merits--that includes out-of-court statements about the competence and motives of the judges. Such statements do not go to the merits, and a judge who is influenced by them is not doing his job. If he is influenced by such statements, he is denying a party his free speech rights.

When lawyers refrain from such speechm they do so as a matter of prudence, not because they genuinely believe that judges would be biased by such speech. Here Bybee is telling the bar that they should actively refrain from such speech, not as a matter of prudence, but because it is not "effective advocacy." He is telling people--including members of the bar--to "shut up" and that is wrong. Plain wrong.


Tom Van Dyke said...

Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

I dunno. Sounds like a typical Scalia dissent.
Indeed, wrote Scalia, “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Anonymous said...

Judges who completely ignore established precedent and rule based on personal feelings are an extreme danger to our way of government. Using campaign rhetoric as a basis for a decision about a facially correct executive order is reprehensible. It's a shame that this judge will never face any kind of punishment for his dereliction.

Unknown said...

By arguing that Trump can't exercise the power granted to him by Congress because of statements he made prior to taking office, statements he can't go back and unsay, the decision strips the executive of an important power under the Constitution for the duration of his Presidency. The law Trump cited was passed by Congress, under the authority granted them in Article I to write rules for the naturalization of aliens, to allow the President to temporarily suspend immigration of any group if their immigration is not in the interests of the United States. So what the judiciary has done is strip a constitutional power from the other branches of government, which we can't allow, while claiming their actions were taken on the basis of fairness and anti-racism.

Yet there is no decision involving immigration that doesn't favor some over others, and which doesn't have some negative impact on somebody, because not everyone on the planet can be allowed to move here. And someone who is already here will always be impacted by the immigrant who isn't allowed to arrive. The test the court set is unworkable and unreasonable, and the action they took is unconstitutional, as one branch isn't allowed to strip constitutional powers from another branch.

Anonymous said...

What is wrong with today's judiciary is HIGHLIGHTED by Judge Bybee (and his 4 co-signers) in the dissent NOT what he said in it (actually after it).

What he so eloquently pointed out is how wrong the 9th Circuit has been in its decisions. And then at the end he added an aside that he didn't think it was right to impugn the motives of his fellow circuit judges (in essence saying that he sympathized with how hard it was to reach a decision in difficult circumstances).

Unless I am misunderstanding your post, you've got it backwards and are targeting the wrong people.

Anonymous said...

Welcome the rest of you to my world. I have practiced law in federal court primarily for the last few years. When judges are appointed for life and are accountable to no one whose judicial acts are affected by their decisions they have only their moral compass. There are those who are relentless in placing the necessity for manipulating a particular result that fits their non-judicial ideology over the law. In other words they are not guided by stare decisis and the rule of law as much as they are guided by ensuring a particular result that favors a particular class of litigants. As a result they will ignore precedent when it suits and material facts when it suits to achieve their believed "correct" result. It is maddening. It is an abhorrent assault on our republic which was founded on the rule of law as opposed to a capricious application of power. And it will not end well when it and if it interferes with ordinary people's conception that their government has a priority for keeping them and their children safe from lunatics that want to blow them up for having the temerity to go shopping at a mall in shorts.

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