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.