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:
Thanks to reader George Weiss for the link.
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.
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.
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.) ]
You're right. It belongs in the United States Reports.
Also, a part of me is glad that judges are starting to call out Kennedy for needlessly interjecting complexity and confusion into the law.
Some people think that judges shouldn't write law review articles.
I'm curious -- who thinks that?
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.
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.
* 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.
And self-serving lines like this don't help.
Their clerks who will end up doing all the heavy lifting and get rewarded with a shout-out in the first footnote.
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?
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.
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.
The fact that the judge is concerned more with the court than the public reveals much.
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.
I don't understand. Who is suggesting that Justice Kennedy "has to be protected from criticism"?
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.
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.
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.
Thank you for the information.
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. . . .
I have a theory that you're wrong. Just sayin....
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).
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.
No, there WAS a Judge Rea in CD Cal. He passed away a few years ago.
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.
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'.
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.
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.