United States v. Robison:
So here's an odd one.

  Two years ago, Senior United States District Judge Robert Propst spent over two months preparing for and trying a complicated criminal case against polluters for polluting "navigable waters" under the Clean Water Act. On appeal following conviction, the Eleventh Circuit reversed Judge Propst in light of the Supreme Court's intervening construction of "navigable waters" in Rapanos v. United States. The Eleventh Circuit ruled that Justice Kennedy's definition of "navigable waters" in his concurring opinion in Rapanos was now binding, and that Judge Propst's jury instructions based on earlier 11th Circuit precedent was no longer good law. The appellate court reversed and remanded the case back to Judge Propst.

  On remand, Judge Propst then decided (as a Senior Judge) to have the case reassigned to another district judge rather than to handle the retrial himself. Part of the reason is that as a Senior Judge he's trying to cut back on trials. But much of the reason is that he's really frustrated with having been reversed on grounds that he finds unpersuasive.

 Instead of just transferring the case, however, Judge Propst wrote a "memorandum opinion," clearly intended to reach a broad audience, explaining that he thinks the Supreme Court and the Eleventh Circuit have really messed up the law. As he sees it, their errors and mistakes have forced him to be so frustrated that he feels compelled to transfer the case. He has nothing but disdain for the opinions in Rapanos: "I will not compare the 'decision' to making sausage because it would excessively demean sausage makers." (fn5). And he also criticizes the Eleventh Circuit because he thinks they ruled incorrectly in reversing him on appeal. He concludes:
It is not the reversal of the convictions in and of itself which concerns me. It is the methodology by which the result has been reached. I realize that I may be subject to criticism for telling the truth. While this opinion may seem somewhat surly, it may be understandable when this court spent over two months preparing for and trying this case only to be told that it must be done again because of a questionable change in the law.
  I'm old fashioned about these things, so I find this opinion very inappropriate. Like any profession, judging can be frustrating. And like anyone else, Judge Propst was perfectly free to write an op-ed or a law review article expressing his views. But Judge Propst was nominated by the President and confirmed by the Senate to decide cases and controversies, not to catalog his frustrations in the Federal Supplement 2d. If our threads on Justice Ginsburg are any sign, however, I may be in the minority in having this narrow view of the proper role of the courts.

  Thanks to reader George Weiss for the link.
PGofHSM (mail) (www):
It's federal instead of state court, but I guess I got it wrong in my prediction that no judge would say Kennedy should be disregarded.

I think you are right to find the language of the memorandum opinion inappropriate. A snarky attitude toward one's colleagues on the bench oughtn't appear in F. Supp.2d. On the other hand, I think the substance of the opinion is legitimate for a judicial statement. The appellate courts, especially the Supreme Court, need to be aware of the problems created for district courts by vague rules and a lack of bright line decision making. I doubt Judge Propst gets to chill with Justice Kennedy on a regular basis and express his sentiments in a private venue, so it's the public forum instead.
11.8.2007 11:29pm
Mike& (mail):
Orin: I am genuinely perplexed, so please don't take this comment as being confrontational or being a game of "Gotcha!"

You seem disturbed here by the judge's action. Yet you're not disturbed where a three-judge panel of the Second Circuit attempted to cover-up official misconduct - even asking a blogger to remove information that cast the government in a bad light.

Shouldn't judges decide cases and controversies by, among other things, clearly stating the legally operative facts - even when those facts case the government in a bad light? Yet that's exactly what the Second Circuit did in Higazy. Or, at least, that how it seems to me.

What am I missing?

[OK Comments: Woah, Mike, that's certainly a connection I hadn't expected. I realize you're really infuriated by the Higazy story, but I just don't get the connection between that story and this one other than the fact that they both involve judicial opinions. As I wrote at ALP, I've been following the Higazy story but haven't blogged about it because "I don't know what to make of it.. . I just don't know, based on the limited picture we can see." What in that comment makes you conclude that I'm not disturbed by government cover-ups? (Also, in Higazy, were the redacted facts "legally operative"? I thought the government conceded the point, so it wasn't actually necessary for anything in the opinion.) ]
11.8.2007 11:42pm
William Spieler (mail) (www):
A snarky attitude toward one's colleagues on the bench oughtn't appear in F. Supp.2d.

You're right. It belongs in the United States Reports.
11.8.2007 11:52pm
William Spieler (mail) (www):
Blarg, forgot the link
11.8.2007 11:52pm
PatHMV (mail) (www):
I agree with you, Orin. While it is certainly proper for a lower court to describe the practical problems which may be caused by a Supreme Court opinion, it is entirely inappropriate to make ad hominem attacks like this on the character of other judges, using such intemperate language. The line about sausage-making, for example, was completely, totally inappropriate. Plus, his focus on the two months he spent preparing makes his screed come across as little more than whining.
11.9.2007 12:04am
bla bla (mail):
Some people think that judges shouldn't write law review articles. So if they're going to inform higher courts that their decisions have created a mess, the only way they can do so is to write about it in an opinion. Maybe this opinion's tone was inappropriate, but I think the judge was right to lodge his criticism of Rapanos.

Also, a part of me is glad that judges are starting to call out Kennedy for needlessly interjecting complexity and confusion into the law.
11.9.2007 12:05am
MarkField (mail):
I disagreed with you about Justice Ginsburg, but I agree here. I'd prefer to see less snark from judges at every level, whether directed at counsel or at other judges. I know they're human, that they get frustrated, and that the temptation to get off a good line can be overwhelming, but I think they ought to resist.
11.9.2007 12:07am
bla bla writes:

Some people think that judges shouldn't write law review articles.

I'm curious -- who thinks that?
11.9.2007 12:10am
I disagreed with you about Justice Ginsburg, and I think it is perfectly fine for lower court judges to tell the Supremes "please get your act together" (see, e.g., State Oil v. Khan, Posner, J.), but this opinions probably crosses the line in civility. This has nothing to do with the forum where it is published. A law review wouldn't accept an article by a district judge that was this openly disrespectful of the Supreme Court and the Court of Appeals. Nor would the New York Times.
11.9.2007 1:19am
one of many:
I agree that the memorandum was inappropriate. Not serious enough to be sanctionable, but inappropriate. Mind you, I endorse his position on Rapanos and in general agree with it and his rebuke of the 11th Circuit, but he still shouldn't have written the memorandum.
11.9.2007 1:20am
Prof. Kerr,

I agree that Judge Propst's memorandum doesn't seem appropriate. Most of the "issues" that he lists at the end appear to have already been resolved by the 11th Circuit--just not to his liking. I also fail to follow his Double Jeopardy argument. He seems to be suggesting that, by having their convictions reversed by a favorable interpretation by appellate courts, the defendants are somehow prejudiced. This seems squarely wrong to me.

As a further point, I think that this memorandum serves to support the sentiment that ad hominem attacks and rhetorical flourishes in Supreme Court opinions are unhelpful. Judge Propst seems to have latched onto some of Justice Scalia's trademark quips and ran with them. Is it not clear enough from the fact that Justice Scalia and the plurality disagreed with Justice Kennedy's legal analysis? Does it help our understanding to bandy about fun stories, such as the "turtles all the way down" footnote? Or does it reduce legal debate into an opportunity to out-snark one another? I would have no problem with a district judge stating that he disagreed with the law, but felt bound to apply it as he decided an actual case. This appears to be a mere opportunity to vent and be proud of his "sausage" and "justcirdity" witticisms.
11.9.2007 1:50am
Mike& (mail):
Higazy story, but I just don't get the connection between that story and this one other than the fact that they both involve judicial opinions.

Both opinions involve a corruption of judicial process. Should judges vent their spleens in judicial opinions? Should Supreme Court justices "write Congress" in their opinions? Should federal appellate judges actively cover up government misconduct? While we're at it, should judges crack jokes in their opinions?

So I think Higazy and Robison are exactly similar. Both involve (alleged) previsions of the judicial process.

What's worse is that in Higazy, the court went out of its way to protect the government's six. In such a case, one might wonder if those judges can be considered fair and impartial?

At least in Robison, the judge reassigned the case. Sure, he threw a tantrum; but ultimately, he didn't choose sides or try to disingenuously distinguish Rapanos to reach a pre-determined result.
11.9.2007 2:11am
* Having 2 months of work go to waste because of questionable decisions/actions by the higher-ups is something that can happen in nearly any job, and doesn't deserve this level of complaint.

* I'm not a fan of Justice Kennedy, but criticizing his opinion by pulling soundbites from separate opinions in which the authors snipe at each other using the usual stock phrases is unpersuasive.

* It seems to me that someone who's been on the bench as long as Judge Propst acts a little too shocked and indignant over the concept of a controlling opinion by a single Justice.
11.9.2007 6:17am
I realize that I may be subject to criticism for telling the truth.

And self-serving lines like this don't help.
11.9.2007 6:18am

Some people think that judges shouldn't write law review articles.

I'm curious -- who thinks that?

Their clerks who will end up doing all the heavy lifting and get rewarded with a shout-out in the first footnote.
11.9.2007 7:35am
Good lord, is Justice Kennedy such a fragile flower that he has to be protected from criticism? The courts aren't the military and even in the military, "inappropriate" (favorite word of the commenters here so far) means "we haven't got a real reason."
11.9.2007 8:10am
Anderson (mail):
Spieler wins the thread.

I don't see the problem with even a district court judge writing what amounts to a dissent. That doesn't excuse a crude or impolite tone, however.

What matters is that the judge does what he's required to do, or else passes it along to another judge who will. That is what, ultimately, this judge did.

And who knows whether, a few years from now, his "dissent" won't be quoted by a majority opinion from the Supreme Court, overturning Rapanos? What will we think then?

QUESTION TO PROF. KERR: I know that some hold the respectable view that SCOTUS justices should not write dissenting opinions, as indeed was quite rare for a period in the Court's history. Do you have some sympathy for that view?
11.9.2007 9:08am
In principal, it should probably be encouraged for courts to point out in opinions the practical problems created by vague "guidance" from the Supremes or other courts or, as Ginsburg did, to encourage Congress to alter the law to reverse judicial decisions.

For the public, the judiciary, and even sometimes for us poor practicing lawyers, it can be helpful to be upfront about how the sausage is made and the real-world problems/issues created by appellate court abstract "theorizing" or even the problems created just by the way a given law is written and interpreted.

That said, there are still issues in tone and respect whith Judge's Propst's approach (rather than perhaps his underlying point) that should be avoided. There has to be a difference between revealing the fallibility and shortcomings of the process and personally calling out individual judges. The problem with the memorandum opinion is that so much of it comes across as the latter.
11.9.2007 9:24am
Justin (mail):
Other than its over the top tone (which is irritating when anyone ::cough cough Scalia cough:: does it, but hardly sanctionable), and the "poor me" part (not that the Propst doesn't have a point about the efficiency of Justice, but there were more tactful ways to make the point), I don't see what is inappropriate about writing a "this sucks" opinion that follows the appropriate precedent. It's certainly better than Judge Rea in the Central District of California, no?

I mean, we've come to see that a bunch of times - I've seen countless concurring or "this sucks but this is the law" district court opinions on issues ranging from abortion to ERISA. What is bad about this opinion is its scale, not its type - and that does nothing to validate your enigmatic criticism of Justice Ginsburg.
11.9.2007 9:27am
RJL (mail):
The Court spent two months preparing? What about the lawyers, and, more the the point, the clients that paid them?

The fact that the judge is concerned more with the court than the public reveals much.
11.9.2007 9:40am
jpe (mail):

Plus, his focus on the two months he spent preparing makes his screed come across as little more than whining.

Bingo. The question raised by Ginsburg's was different: not whether her methods were appropriate w/ respect to propriety or dignity, but whether they were appropriate w/ respect to separation of powers.
11.9.2007 9:53am
I certainly agree what he's done here is wrong- for its tone, if not its content. For one thing, he seems to feel sorry for himself that he put two months' work into the trial only to have it vaporized to start over. For another, he is completely disrespectful ("sausage makers," etc.). Imagine if YOU wrote that in a new-trial motion about one of HIS rulings.
11.9.2007 9:58am

I don't understand. Who is suggesting that Justice Kennedy "has to be protected from criticism"?
11.9.2007 10:10am
Anderson writes:
QUESTION TO PROF. KERR: I know that some hold the respectable view that SCOTUS justices should not write dissenting opinions, as indeed was quite rare for a period in the Court's history. Do you have some sympathy for that view?
I'm not sure I know what "some sympathy" is, but I don't share that view. Federal judges decide cases and controversies, and judges on an appellate panel must vote for which side they think wins on the law. If a judge or Justice happens to disagree with the majority's resolution and votes accordingly, it is appropriate for him or her to explain that vote.
11.9.2007 10:18am
Mark Field (mail):

It's certainly better than Judge Rea in the Central District of California, no?

Do you mean Judge Real? Of course, if that's the standard, only a few (sadly, some of them in the CA CD) will fail it.
11.9.2007 11:28am
Justin (mail):
Yes, Mark. Sorry for the typo.
11.9.2007 11:38am
Dave N (mail):
This is a bit off topic but fits the discussion because it is something i have always wondered. How does a federal district judge get an opinion published in the F.Supp.2d?

Obviously, the Supreme Court publishes everything--and state supreme courts and the circuit courts choose what is published. But I have never figured out how a federal judges does it and whether West filters submissions.
11.9.2007 11:41am
Dave N,

The district judge basically makes the decision in his or her own discretion whether to publish an opinion or not. There are some promulgated guidelines addressing this (basically, opinions should not be published unless they make some useful contribution to the law or address an unsettled point), but they are, in my experience, widely disregarded. When I was clerking, the judge for whom I worked generally published anything of substantial length that he thought would be useful to other courts. The actual process of submitting the opinion is just a matter of emailing the file to West with "for publication" vs. "for electronic database only" in the email body.
11.9.2007 11:58am
Dave N (mail):

Thank you for the information.
11.9.2007 12:02pm
I didn't react to the tone of the opinion as many of the commenters seem to have. It's mostly a series of quotes from other court opinions which (at least to one without any specialized knowledge of this area of law) are pretty effective in illustrating the incoherence of the higher court decisions. The most intemperate language in the memorandum is directly quoted from the various opinions in Rapanos in which the justices are hurling invective at each other. I could have done without the conclusion, I suppose--its whining detracts from the force of the rest of the memorandum--but in terms of tone, its criticism of the judiciary is hardly stronger than the type of snark aimed by judges at parties and lawyers every day.
11.9.2007 12:11pm
CrazyTrain (mail):
Prof Kerr -- Is it the tone of the opinion that you think is inappropriate? Putting aside the tone, shouldn't district judges be just as free as their appellate colleagues to write opinions criticizing the law as they see it? Certainly, you don't find fault with the many separate opinions littering the Federal Reporter by individual Circuit judges criticizing either binding circuit law or Supreme Court law (or even sometimes state law)?

Assuming it is the tone, and out of curiosity (and you may choose not to answer this for legit reasons), but do you also find the very snarky tone of Justice Scalia's separate opinions to be inappropriate?

I have a thesis that Justice Scalia, and Judge Kozinski to a lesser extent, are party responsible for the overuse of snark in federal opinions these days. . . .
11.9.2007 12:49pm
JohnThompson (mail):

I have a theory that you're wrong. Just sayin....
11.9.2007 12:59pm
Mark Field (mail):

Yes, Mark. Sorry for the typo.

No problem. It happens that there IS a Judge Rea in the CA CD, but he hasn't done anything to deserve criticism on this score (at least, not that I know of).
11.9.2007 1:01pm
PGofHSM (mail) (www):
Agreed that Scalia, in particular, uses an intemperate tone toward other judges. I don't consider Scalia a model that other judges should follow, and personally believe that his insults are part of the reason he wasn't an option for Chief Justice.

As for people's using the word "inappropriate" a lot: as noted in the thread about ENDA, "appropriate" is an important concept in professional life, and especially in law. That a certain behavior doesn't violate a clearly stated rule often is due to the fact that certain general standards of behavior are expected without being spelled out in particulars.
11.9.2007 1:02pm
CrazyTrain (mail):
It happens that there IS a Judge Rea in the CA CD

No, there WAS a Judge Rea in CD Cal. He passed away a few years ago.
11.9.2007 1:08pm
Anderson (mail):
Imagine if YOU wrote that in a new-trial motion about one of HIS rulings

That's not a bad rule ... a judge should not publish anything that, objectively speaking, would be likely to draw a show-cause order were an attorney to use similar language in his brief.
11.9.2007 1:10pm

I don't understand. Who is suggesting that Justice Kennedy "has to be protected from criticism"?

What's the objection to Judge Propst's opinion if it's not to his criticism of Justice Kennedy's opinion in Rapanos? Is it really to the presentation, or is it that by putting it in an opinion of his own and being sarcastic with it, Propst has given it unusual force?

Why not consider that Propst is a very senior jurist who presumably knows something about doing his job responsibly and take his opinion on its merits? It appears to me that you are protecting Kennedy with a red herring about Propst's 'inappropriate' opinion: in my experience, 'inappropriate' is just code for 'we don't want to talk about it'.
11.9.2007 1:19pm

Your belief that I must be arguing in bad faith -- because I have said something is "inappropriate", and in your experience that's a "code word" -- is really disappointing. My criticism of Judge Propst has absolutely nothing to do with the substance of his criticism. Yes, Rapanos is a mess. No doubt. Yes, I think Justice Kennedy's opinion in Rapanos is weak. It's not clear, and the law here really demands clarity. But so what? I'm making an argument about the appropriateness of making an argument, and it is a good faith argument and a very serious one. I woudl appreciate it if you would address it on the merits without claiming, without any evidence, that it is a ruse.
11.9.2007 2:00pm
PGofHSM (mail) (www):

No, "inappropriate" is code for "adults should behave better than this in a particular environment." For example, discussing your sex life loudly on your cellphone in public is not criminal (oh, the citizen's arrests I could have made otherwise!), but it is "inappropriate." As in, people will disapprove of your behavior. And here we are, disapproving of Judge Propst's behavior.
Some of us disapprove of the particular tone and style he used; Prof. Kerr appears to disapprove of his having used the venue of a memorandum opinion to make the criticism. I haven't yet seen someone say on this thread that Justice Kennedy's opinion in Rapanos is not deserving of criticism. The question is where, how and by whom that criticism should be made. Think of it as a time, place and manner restriction enforceable not by law but by social disapproval.
11.9.2007 3:36pm