A few days ago, David Bernstein mentioned David Schraub’s post explaining his disagreement with my view questioning the propriety of Judge Brown’s concurring opinion calling for a return to Lochner in Hettinga v. United States. At the time, I wrote:
I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.
I strongly disagree — while obviously I disagree with the content of Judge Brown’s opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way — I’d like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.
Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?
But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how “this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair.” Of course, courts often mean to imply none of these things — the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.
As with most questions of propriety, context matters. In the abstract, I think Schraub’s arguments can have merit in some cases. But focusing on the Hettinga case speficially, the arguments don’t seem to apply. For the handful of readers who care, I wanted to say a bit about why.
Let’s start with Schraub’s first argument, that concurring opinions can provide valuable feedback about how the law is working in the trenches. That can be true, when lower court judges really do attempt to provide feedback about how law is working in the field. (Judge Sutton’s concurring opinion in Lyons v. Xenia, 417 F. 3d 565 (6th 2005) comes to mind as a good example.) But I’m not sure how that general role justifies Judge Brown’s opinion. Judge Brown’s opinion did not purport to express how the demise of Lochner in the 1930s is now “playing out on the ground.” She does not claim to base her opinion on her experience as a judge, or what she is seeing in the lower courts. She does not purport to have any special insight on the problem — just a strongly-held opinion that the Court of the 1930s got it wrong. I guess I don’t see how that provides helpful feedback to the Justices.
The same is true with Schraub’s second point that concurring opinions “help sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” While that may have merit in some cases, it does not seem to apply to the opinion in Hettinga. Judge Brown’s opinion does not say that the Milk Regulatory Equity Act of 2005 is moronic but constitutional. Rather, it says that that the law is moronic, and the Supreme Court is moronic for its opinions that require lower courts to uphold it. That is not the kind of opinion that will “sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” To the contrary, it is a call to change the law so that constitutionality more closely reflects sound policy — a world in which judicial decisions actually wouldconstitute a kind of endorsement. If the commendable goal of a concurring opinion is to stop people from wrongly thinking that constitutional decisions reflect policy judgments about the merits of statutes, then the concurring opinion in Hettinga strikes me as a step backward rather than forward.
Anyway, I realize that I have a different take on these issues than many others. I tend to be more process-oriented than most, and I think it’s important to keep politics and law as separate as possible. Others don’t have these priorities, and will look at this diffferently.