Seth Barrett Tillman: This Is What Is Wrong With The American Judiciary


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.” 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 dissent’s 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. Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

Read the whole thing.

UPDATE: I Was Wrong

17 thoughts on “Seth Barrett Tillman: <i>This Is What Is Wrong With The American Judiciary</i>”

  1. The courts had been bending over backwards to accommodate Obama by re-imagining what his laws could’ve meant to be constitutional, and now they’re twisting and contorting to scrape up any hearsay and innuendo possible to render Trump’s EO unconstitutional. If they’re so insulated from reality that they think they’re fooling anyone then they deserve ridicule.

  2. To paraphrase Capote on Kerouac, one can only read that Hawaii opinion and say that’s not judging, that’s blogging.

  3. Spoiled rotten, those federal judges of yours. And so naturally they become cry-babies.
    As for the corruption involved in this case, how could it be otherwise? Everything else is becoming corrupt.

    Amazingly, amusingly, it’s possible that the absurd Trump is less corrupt than The System that hates him.
    A New York property developer, for heaven’s sake. It is, you may say, ironic.

  4. The Federal Judiciary is the closest thing we have to priest-kings in this country. They are unaccountable to anyone for all practical purposes, and the problem is that a critical mass of them, definitely a plurality if not a majority, are politically corrupt. Their loyalties are to the Democrat Party and Leftist ideology rather than the Constitution or the Law.

    They scoff at the law, ignoring the plain text of statutes and consider the legislative process a competing form of governance that they are at war with. Consent of the governed is, to them, submission to whatever the latest outrage that they decree.

    Our system only works under a rule of law. In its absence, it degenerates into tyranny. And there is only one answer to that.

  5. My fear about Trump is that the left will press him so fiercely that the authoritarian temptation will be come irresistible.

    They think they can force him out of they raise enough hell.

    They do not understand that the resistance they are so proud of is infuriating the country,

    I don’t think Trump is Hitler but he could become Pinochet or worse if the left keeps up the guerrilla war they are so proud of.

  6. “I don’t think Trump is Hitler but he could become Pinochet or worse”
    Balderdash. With what army? Not with the US military, that’s for sure.

    The fear to have is that the left will not be able to move past the psychotic combination of denial/anger that they’re still in, and will burn down the institutions that they’ve taken over in the past few decades. The judiciary still has complete respect and deference, although they have shown in the past decade they don’t deserve it any more. We tolerate their craziness and give respect to the role that judges used to play, and the deference they used to show to the Constitution. But what happens if some judge makes some completely bonkers ruling like enjoining Trump from his role as commander-in-chief? I could easily imagine someone doing that. Then what?

    “So now you’d give Trump benefit of law!
    Yes. What would you do? Cut a great road through the law to get Trump?
    I’d cut down every law in America to do that!
    Oh? And when the last law was down, and Trump (or his successor) turned round on you — where would you hide, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give Trump benefit of law, for my own safety’s sake.”

  7. Well, a man (and a rule of law) for all seasons. Nice.

    We’ll see Trump’s actions – but they tend toward deregulation and extensively pruning the overbearing federal tree that denies light to our little ambitions and little projects the sum of which produce a productive and happy nation. And he seems to take seriously the first responsibility of a national state – to protect its citizens from enemies, domestic and foreign. For one thing, he seems to actually think we have enemies, not just oppressed victims.

  8. It’s not the best comparison, since Trump is by no means The Devil, but it came to my mind as I look at the left’s ongoing gleeful shredding of normal governance to stop President Trump from actually exercising powers that have previously always been completely uncontested.

    John Roberts made a disgusting and disgraceful decision in the Obamacare case, but one can respect his firm and unwavering commitment that the judiciary not be seen to run roughshod over the other branches on such a major piece of legislation. One wonders what he thinks now that it’s clear that his liberal colleagues on the bench have no such principles. Does he feel like a dupe and a sucker? Do the liberal judges realize that they are doing to their profession what journalists did to theirs a few decades ago? And do they realize how much more significant the institution they appear hell-bent on destroying is to healthy functioning of society?

  9. The real fix for the Federal judiciary is retention elections.

    If judges use lifetime appointments to over ride the plain language of the constitution, then the American Public needs elections to over ride the judges.

  10. Not sure that is good enough at this point. Clearly “loyalty to the Constitution” has been jettisoned as a major driving force for leftist judges, and pure ideology is all that matters. I don’t know that they would actually make any better decisions if they had to face elections (how would that even work?). Turnout would almost certainly be very low and driven by the strongest partisans.

  11. Brian,

    The best is the enemy of the good enough.

    Elections are the best means available to provide an incentive to a Leftist judge to be moderate — AKA the loss of power.

    It should be coupled with term limits for Federal judges of about 12 years.

  12. It just sounds like that would functionally be an extra legislature–so what’s the point? Why not then abolish the judiciary and say that the Congress can either overrule the president or not? If we are going to accept that judges are partisan hacks and should be subject to elections, then to hell with them, they should be eliminated.

  13. A better idea might be what Mark Levin has proposed in his book ‘The Liberty Amendments’. Either 3/5 of Congress or 3/5 of the states can overturn a Supreme Court decision within two years.

  14. Neither Seth’s nor Jonathan’s posts makes reference to Judge Reinhardt’s concurring opinion in the case.

    “Their loyalties are to the Democrat Party and Leftist ideology rather than the Constitution or the Law.” And to self-congratulation over their choice of loyalties:

    “REINHARDT, J., concurring in the denial of en banc rehearing:

    I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”

    For anyone unfamiliar with Judge Reinhardt:

  15. David Frum, who has impeccable Trump-hating bonafides, echoes what I said above:
    In response to the danger posed by Trump, other American power holders will be tempted to jettison their historic role too, and use any tool at hand—no matter how doubtfully legitimate—to stop him. Those alternative power holders may even ultimately win. But in winning, they may discover themselves in the same tragic position as that Vietnam-era army officer who supposedly said: ‘We had to destroy the village in order to save it.'”

  16. I don’t know that they would actually make any better decisions if they had to face elections (how would that even work?). Turnout would almost certainly be very low and driven by the strongest partisans.

    You might benefit by reading a biography of Rowe Bird.

    Her tenure on the Supreme Court was controversial. She was vigorously publicly attacked by her critics as an ideologue who substituted her personal views over the law and the state constitution. Her widely perceived personal opposition to the death penalty was a particular sore point for her critics. She was first up for an retention election in 1978. There was a campaign waged against her, which she did not respond to. However, on election day, it was charged that the court decided to withhold the publication of a controversial ruling until after the 1978 vote.[3] The ensuing controversy generated considerable press coverage but, by then, Bird had been retained by a 52% to 48% margin.

    She lost in 1986.

    Bird was the first and remains the only Chief Justice to be removed from that office by a majority of the state’s voters. California justices are selected by the Governor but must be regularly reconfirmed by the electorate; prior to Bird, no California appellate judge had ever failed such a vote.

    The anti-Bird campaign ran television commercials featuring the relatives of the victims of the murderers whose sentences Bird and her fellow justices Cruz Reynoso, Joseph Grodin, and Allen Broussard had voted to reverse. In addition to Bird, Reynoso and Grodin were also voted off the seven-justice California state supreme court bench. Justice Stanley Mosk, who often joined Bird, Reynoso, and Grodin, was not challenged nor were the other three justices.

    Three anti-death penalty justices were defeated. That, of course, was a different era in California.

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