Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat.

How is this different from Scalia's rant about the "homosexual agenda"?

Jones and Wiener are both excellent judges, but they're both results oriented. I'd bet Wiener is just venting about something snide that Jones said in conference.

"Cervantian tilting"...

Must find a way to work that into my next cocktail party conversation.

As far as I know, Scalia's aside about the homosexual agenda did not purport to underpin his whole opinion.

It looks to me like Wiener is saying the party and law firm manufactured a phony controversy to get an advisory opinion to help their "crusade." The identity and plans of the law firm are directly relevant to this inquiry. This is a completely appropriate line of inquiry because federal courts do not have jurisdiction to decide phony controversies.

Whether Wiever is right or wrong about the controversy being phony, I don't know, but Volokh's criticism of Wiener seems wrong.

Chico,

It sounds like you're saying that the identity and plans of the law firm are doctrinally relevant. Can you explain how they are relevant? Is there a doctrinal test I am missing that factors in law firm plans?

Chico,

That's very wishful reading. I don't think he is saying that there is no controversy or that it's a fake controversy, I think he is saying that the "bad guys" are trying to take advantage of the situation to create precedent, and that he doesn't like their motives.

Baker v. Carr says that litigants must have a "personal stake in the outcome" to assure "concrete adverseness which sharpens the presentation of issues which the court so largely depends for illuminations of difficult constitutional questions." That is the doctrine.

Wiener seems to be accusing the law firm of manufacturing the plaintiff's "personal stake in the outcome," when she really has none. As a factual matter, if the law firm is on a quixotic quest to overturn the law, it makes it more likely that that the alleged injury in fact is a sham and not sincere. See Fed. R. Evid. 401. It's not the strongest evidence in the world, but it is evidence.

I'm pretty sure there are cases out there where courts dismiss cases after deciding that the parties colluded to get a judicial ruling on an issue when they really had no factual dispute between them. The inquiry into the parties' collusive motives in those cases would be analagous to the inquiry of the law firm's and plaintiff's motives in this case.

Is a "libertarian crusade" any worse than the typical law firm motivation - namely, money.

Chico's: The inquiry into the parties' collusive motives in those cases would be analagous to the inquiry of the law firm's and plaintiff's motives in this case.

Not at all. Collusive motives are obviously important in cases such as you describe because collusion between the opposing parties means there's no real controversy. Collusion between a party and her own law firm is, to put it mildly, not shocking.

PubliusFL:

Try this logic:

Where a suit involves a plaintiff who sought out a law firm, it is somewhat more probable the plaintiff suffered a real injury. Where a suit involves a law firm who sought out the plaintiff, it is somewhat less probable the plaintiff suffered a real injury.

Look at this empirical evidence:

Cal. Business &Professions Code 17200.

Hey Chico,

I don't think quoting from the dissent's conclusions that the Plaintiff never had the right to exclude is overly persuasive. I mean, I think that is the point of the case: to determine whether she had and/or has the right to exclude. Judge Weiner taking that view of it is fine (whether right or wrong), but that has nothing to do with the motivations of the law firm. It seems to me that the Plaintiff here claims harm in that she is unable to exclude people from what everyone seems to agree is her property (at least in part). Whether the public has some kind of "easement" that changes locations with the weather is at the heart of the case, as is whether any compensation is due for that changing easement. I mean, the way I understand the facts from the majority, this lady had a house near the beach, then a hurricane came along and made her house on the beach. Then the state said "we're going to knock down your house and you have to let people walk all over the spot where it used to be." Maybe that's a taking, maybe it's not---but it doesn't sound like someone went out and ginned up a dispute.

As for collusion, that's been amply answered by Publius.

"Because of certain systemic flaws, it is hard to respond to the dissent, which asserts that Texas law is utterly clear. For instance, the dissent does not deign to interpret the OBA’s language; to respond to this opinion’s analysis of lower Texas cases; to note the law review
articles that have discussed the OBA; or to engage in a historical survey of Texas land title law to support its position. See, e.g., Luttes v. State, 324 S.W.2d 167 (Tex. 1958) (analyzing ownership of Texas beach land based on Spanish land grants). Moreover, it is not even clear that the dissent has read the majority opinion, which does not “declare that with each shift of the vegetation line, a new easement is born.” That is an issue the Texas Supreme Court must address. Nor does this opinion hold that Severance’s claim “will ripen in the future.” That depends on what Texas courts do in this or other cases."

Sheeesh.

On another note: Chico, I hate to feed a troll, but I think you may be confusing cases where there was collusion between the parties with whatever you think is going on here. The judge is complaining about the motives of plaintiff's lawyers and the people who hired them. The cases you reference involving collusion aren't helpful because the state of Texas is on the other side of the case, (I would insert "obviously" here, but apparently it isn't) not Plaintiff's lawyers.

Ariel:

Yes, exactly.

Former Student:

Nope, not confused at all by the distinction between collusion between parties and collusion between lawyers and clients. That's why I said the cases are "analogous," instead of "100% directly on point."

Is a "libertarian crusade" any worse than the typical law firm motivation - namely, money.

Crusades, including libertarian ones, tend to be much more expensive even than lawsuits.

Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat.

I don’t completely agree. I’m thinking of the “strict liability” lawsuits that were filed against firearm manufacturers and dealers. In this case the strategy was to bring a series of lawsuits that had little chance of succeeding absent a rewrite of tort liability, hoping that the legal expense of defending and winning said suits would drive companies out of business. These efforts continue, even though Congress and most states have passed laws prohibiting such lawsuits. IANAL, but law firms engaging in that sort of activity should be reprimanded, at least.

That admittedly may be a more extreme situation than the present.

For some reason, these kind of posts on the VC always make me think of Jon Lovitz's "Tales of Ribaldry." The VC'er claims to be upset by judges going beyond the bounds of appropriate judicial conduct -- here, by launching an attack on a libertarian issue organization; elsewhere, I've seen it in discussions about judicial recommendations for judicial appointments -- but it comes off as almost deliberately naive. Like, "Oh, my! Judges sometimes act like politicians! My face is crimson! They're not supposed to do that! How naughty!"

No, the identity of an issues organization like the PLF is not "doctrinally relevant" (to refer to Kerr's annoyingly reductive strawman). But as long as the decision rests on an appropriate legal foundation, references to the political motivations of a lawsuit (and criticisms against such motivations) strike me as harmless, particularly in a dissent or non-binding concurrence. Indeed, they could even be beneficial, by shedding some insight into political trends and movements the reader of a dispassionately formalist opinion might not catch on his own.

(I think there's a certain irony here, too, in that the judge is up for criticism, but the PLF is not. I guess it's inappropriate for judges to act like politicians, but not for organizations like the PLF to push for changes through judicial activism that might more appropriately be sought through legislation or constitutional amendments.)

The only basis we have here for believing that Wiener's opinion gave substantive significance to the PLF's politics is his use of the word "framework," but absent some description of his legal reasoning, I don't this as meaningful. He might just as easily have said that his analysis would occur within a particular "context" or with a particular "history in mind," and the sense would have been the same. No judicial opinion is without a "framework," in this sense; they vary only in how explicit they make that framework out to be.

Judge Wiener appears, from my quite limited experience, to usually be courteous and gracious in person, including at oral argument.

His opinions are usually pompous, however, with relevant thoughts often fragmented and half-stuffed into footnotes. He makes his opinions a lot more complicated than they need to be.

Here, he has really gone off the deep end.

Chico, FTW.

I see nothing improper at all in the dissent.

I do suspect there is something highly improper in the majority opinion. It seems quite clear to me that the the majorities failure to recognize that there was only one dynamic easement in this case is primarily ideological. It is not uncommon for property lines or the precise boundaries of easements to change due to physical changes. This is not a radical new doctrine, but is instead firmly established. Yet, the majority adopts the radical position that each physical change gives rise to a new easement. Wow. Talk about stretching the law because you don't like the result.

In other words, quite clearly the majority is involved in stretching the law for blatantly ideological reasons.

Should I be surprised that Edith Jones, who has famously criticized the "exercise of raw judicial power" in her entirely inappropriate concurring opinion action of launching on a tirade criticizing the Supreme Court in McCorvey v. Hill (which, last time I checked, sat above, not below the Fifth Circuit Court of Appeals) is here herself exercising raw judicial power to avoid a result she dislikes?

That Edith Jones would dare to join a majority decision with a footnote that questions the propriety of the dissent in this case when she is the queen of inappropriateness in judicial opinions herself, is at first glance surprising. But, one need only remember that many scoundrels are also hypocrites to overcome such surprise.

Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat.

Let us consider standing for a second. One prong of standing law is that one must have more than a generalized grievance. One must have more than a purely ideological desire to shape the law or see it enforced.

It is precisely cases like this by the Pacific Legal Foundation that the doctrine of standing is supposed to keep out of court. This is a generalize grievance -- the Pacific Legal Foundation wants to attack the Texas Open Beaches Act. To the extent that Ms. Severance, and her false claim against the state for an injury actually casued by nature come into play, she is merely a pawn of the Pacific Legal Foundation in a quintessentially ideological game. Here, the existence of the dynamic easement existed before the plaintiff purchased the property. The purpose of this case is, as the dissent notes, more to attack the validity of the Texas Open Beaches Act than to seek redress for injuries supposedly caused to Ms. Severance by the State of Texas (when in fact any such injuries were caused by nature -- surprise surprise -- hurricanes do sometimes damage property.)

The reason that the dissent mentions the ideological foundations of the case is not because the judge here would rule against the ideological plaintiffs who brought a valid case because he doesn't like who they are ideologically. Instead, he is merely pointing out that this is an entirely ideological case and keeping such entirely ideological cases out of court is the reason d' etre for the now Constitutional bar on courts hearing generalized grievances - which in this case is really against the Texas Open Beaches Act.

Now, I personally have never been a fan of this prong of standing law. However, even though I am no fan, if I were an appellate judge, I just want to state for the record that I would never issue a concurring opinion and go on a tirade against the rulings of the Supreme Court which stands above me and whom I should show respect for in the way that the very ideological Edith Jones has. The bar against generalized grievances of this sort is the law. And this is precisely the sort of purely ideological case that are supposed to be kept out of court.

It is slightly ironic that the judge who mentions ideologies is the one who is actually following the law rather than his own ideology while the judge who doesn't mention ideology has clearly employed their own ideology and their dislike of certain results to absurdly assert that every single shift of vegetation (which is a constant process) potentially results in a brand new claim against the state due to the existence of longstanding easements. Wow. Radical judicial activism is alive and well on the right.

Apologies to Chico! I guess I really did write wishful thinking in that earlier post.

As for Welker, I'd read Carol's post. It's easy for us lawyers to forget that there are real people whose lives are impacted by lofty appellate opinions which, for us, are either abstract debates or just some project at work.

Just to make sure I am not misunderstood for taking some sort of a litigation position I do not hold from my last blog post,I just want to clarify that "The Officials read state law to say that because of the vegetation migration, you have no right to exclude trespassers from your doorstep and no right to build or repair because a public easement supposedly now controls the land." The Open Beaches Act actually does not authorize any public easement based on the vegetation line. But the state Officials read and apply it differently. That is the problem, or part of it.

Carol, thanks for making a comment. I think your perspective really cleared up this discussion.

In case it wasn't clear, Evers granted standing to plaintiff.

LawClerk1,

I recognize that Ms. Severance is a real person. Nonetheless, she is a real person without standing, because the easement already existed when she bought her property. End of story. Only radical judicial activism could change that result.

Ms. Severance blaming her misfortune on others (in this case, the State of Texas) is an all too human error that many people who suffer loses make. But, it is nonetheless an error. The real evil doer here is Hurricane Rita. Considering that Hurricane Rita killed people, all of whom were also "real people" and who nonetheless did not tend to blame the State of Texas for their misfortunes (to my knowledge), I think on the whole Ms. Severance could rationally consider herself rather fortunate, as far as victims of Hurricane Rita go.

Obviously, I very much wish that there were no victims of Hurricane Rita, including Ms. Severance.

I'm not sure I agree with Judge Weiner's decision to begin his dissent the way he did. But I think he's a good judge who is generally honest about what he does. And I think there’s something to the idea that his introduction is relevant to the standing inquiry. (That being said, if the organization was the ACLU, I would be pissed if a judge started a dissent like that.)

Jones, however, is a complete and total hack. She cares little about the law. I'm glad someone else mentioned Jones's Roe II "concurrence." Among my favorite Jones moments was when she mocked a NAACP lawyer from Mississippi (the organization had intervened in a case) for arguing a law was constitutional. In a snide and mocking tone, she said something to the effect of “wow, the NAACP is all of a sudden not a fan of courts intervening?” I mean, really? The NAACP. From the South. If any organization has had lots of legitimate reasons in the past to argue that laws were unconstitutional, I would think it would be them. I also always liked seeing her roll her eyes on the bench during oral argument or otherwise act like a petulant child. There are a handful of smart, thoughtful, and relatively honest conservative judges on the Fifth Circuit. (Barksdale, Smith, Davis, Southwick). But Jones (and Clement) are none of those things.

/end rant

I'm sure that all you people approving of the dissent would equally approve of a judge saying, "The lawyer representing this death penalty defendant is known for crusading against the death penalty, so I consider that relevant in evaluating this appeal." Or is it just a one-way ratchet?

As to the judge's "gratis" comment, I thought courts encouraged attorneys to do pro bono work. Oh, right, that's only for work in the public interest, and property rights clearly don't have anything to do with that.

q:

You are confused. Take away the injury to this property owner (because the easement existed before) and you still have a generalized grievance about a regime of law that this plaintiff believes to be unfavorable. But, of course, generalized grievances are not judiciable. That is why this analysis is relevant. It is quite clear that this is what the dissenting judge has in mind when he writes: "the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA." That is, this case is really about a purely ideological generalized grievance, not a concrete injury.

Everyone agrees that the particular ideologies of the parties is not relevant in the sense of ruling against them or for them. But, the reason d' etre of the bar against generalized grievances is keep the judiciary from entangling itself in political matters in cases that are purely ideological. What the dissenting judge is saying here is that this case is precisely one of those sorts of purely ideological cases in which the judiciary should not entangle itself. It doesn't matter precisely how it is a purely ideological case. The ideology could be liberal, conservative, libertarian, environmentalist, whatever. In this case, the case happens to be libertarian, and that is the only reason why the judge mentions that. Of course, if this case was more than "purely ideological" it would be judiciable despite the fact that it is also ideological.

Nobody expects the "Libertarian inquisition crusade".

Weiner's real sin is horrid writing. "Californians’ Cervantian tilting", "Foundation cum Don Quixote". Who writes like that?

If he wants to attack someone's motives, he can learn from Judge Jones:

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

That is good writing.

Everyone agrees that the particular ideologies of the parties is not relevant in the sense of ruling against them or for them.

"Everyone" apparently does not include Judge Weiner.

"Everyone" apparently does not include Judge Weiner.

Actually, if you can read, it does include Judge Weiner. His dissent is obviously not on the basis of ideology.

Orin, by the same token, I could point out that your argument-style seems to rely on reducing arguments with which you disagree to strawmen and then mocking them. That's the second time you've done that here.

But it's a fair point. I rely on my comparison of the VC to the "Tales of Ribaldry" to carry the criticism. I can work it out a bit more.

Eugene says that "[a]ppellate decisions should be about which side has the better argument," not about details about the parties that are extraneous to the dispute before the court. I think that's a completely unobjectionable thing to say about legal conclusions; they should be based on legal reasoning drawing on the evidence and arguments presented in the course of a clearly-defined and observed process. But Eugene hasn't given us any reason to believe that Wiener has rested his legal reasoning on any extraneous detail about the parties. There is a passing reference to a "framework" for a substantive analysis, but that is not enough, for reasons I addressed in my earlier comment.

Rather, Eugene (and you) seem to be saying something about the appropriate role of judges. Not only should they limit their legal reasoning in the way that I've described, but they shouldn't venture in their opinions much beyond that reasoning, or at least certainly not to matters where they make these kinds of judgments about legal issue organizations. Eugene describes this kind of thing as "troubling" but his explanation works only against a kind of legal reasoning Wiener's opinion doesn't obviously exemplify. As far as I can discern, the purported "harm" caused by Wiener's opinion has been left unexplained.

So what is the harm? Is the harm to the individuals before the court, who may find themselves publicly attacked in a way to which they cannot effectively respond? It could be, but then I'd expect Eugene's solution to be just more speech, an option it seems (from other comments here) the plaintiff has in fact chosen. Is Wiener's comment harmful because we think judges should be impartial, and his words seem to betray that impartiality? That might be a more defensible "harm," since we generally want judges who appear not to be impartial as between two parties not to adjudicate their disputes. But the "appearance of partiality" is a step removed from what we really care about (that is, partiality in adjudication). If what we really care about is whether Wiener will in the future devalue claims brought with the PLF's help, then his opinion actually helps us to know that; nothing is served by having him remain silent on his personal opinions. Of course, he shouldn't devalue such claims, but that would be an argument not about the propriety of ad hominems but about judicial partiality, which doesn't seem to be what concerns Eugene here.

It's possible that the harm might be to the "office of the court." The appearance of partiality, for example, may tend to reduce the esteem in which we hold judges. You might also argue that there is some "separation of powers" argument here, in that judges shouldn't be in the business of passing on political viewpoints, just because that's not what judges do. I don't find these harms to be very compelling. Why do we need to hold judges in any kind of esteem? Judicial power might ultimately be said to require the complicity of those called to abide by judicial decisions, and part of ensuring that compliance means judging in a way that people will accept as legitimate. That's part of why we want judges to be impartial. But judges can lose their "esteem" in this respect by hewing rigidly to specious but formalist legal reasoning just as easily as they can by openly injecting their policy or political preferences into their decision-making. (I refer you to the work of Justice Scalia.) So it seems odd to focus on Wiener's ad hominem when, as someone elsewhere in the comments has claimed, the majority opinion might itself rest on highly dubious legal reasoning.

As for the "separation of the powers" argument -- I've seen it made in the VC with respect to judicial statements about appointments or about legislation, but I've never seen it really supported. It seems to always come back to one of the arguments I've already addressed -- judges shouldn't act like politicians, because then they'll appear partial, etc.

The problem with this argument is that judges are politicians. To begin with, as I've already suggested, judicial power, in its essence, relies on judgments about what people expect judges to act like, which is to say, on essentially political judgments. Judges also have political preferences -- not just in the base sense of candidates they support, but in the sense that there are judicial doctrines they think should be supported, legal developments they wish to forestall, and the like. Judges are also on the front lines of many of our political firefights (which are increasingly being fought in the courts), so that they become political actors just by virtue of their decision-making capacity in those cases. (This case is a good example.)

So the VC protestation that there is something wrong with judges taking political sides always strikes me as both bizarre and willfully naïve. Judges just aren't legal calculators that weigh arguments and evidence objectively in reaching their legal conclusions. I'm not even sure we have good reasons to want them to act like legal calculators, either. But in any event the "harm" caused by their taking sides in the way Wiener has here strikes me as elusive, your confident assertion that "others" find it compelling notwithstanding. Again, I am reminded of the Lovitz sketch; it seems as though you find scandalous what is actually common and mundane.

David Welker:

I'm hearing you that the easement has long (since before plaintiff purchased the property) been a movable one. And certainly one can imagine a law the text of which would make clear to all when such movement has taken place. It is my impression, and perhaps that of others, that the OBA is not such a law. The easement did not move until a public official decided so. Surely the plaintiff has standing to challenge such a decision?

What are we missing?

It seems to me that the comparison to Scalia in Lawrence has it backwards. Scalia is complaining that the majority opinion followed biased political agenda in reaching its decision, as opposed to the instant case where the dissenting judge lays out his OWN (not the majority's) bias/political agenda and then sets about using that bias/political agenda as the framework for his decision process.

So Scalia saying the majority used a flawed biased decision process is hardly the same as the instant case where the dissenter states his flawed biased thinking and proceeds to use it as the basis of his dissent.

Says the "Dog"

Also @Welker

Under what circumstances do you think a person would have standing to challenge this law? I can't think of any scenario where, under your view, someone could bring such a law suit at all.

You are confused. Take away the injury to this property owner (because the easement existed before) and you still have a generalized grievance about a regime of law that this plaintiff believes to be unfavorable.

I'm not confused at all; I believe that is essentially what I said. However, whether or not there is an injury is the only dispositive point; ideology is wholly irrelevant to the analysis and is ignored when most judges consider standing.

In Lujan v. Defenders of Wildlife, I'm reasonably certain it was the ideology of the plaintiff that drove the case and not their alleged inability to see endangered animals in Sri Lanka. Whether or not the latter was an injury-in-fact was the point of debate, yet the opinions which stated it was not did not find it necessary to impute conspiratorial motives on the plaintiffs. Not even Scalia in his rejection of plaintiffs' generalized grievance standing.

I don't think it's unreasonable to think ideology drove both this case and Defenders, but I do find mentioning it as well as disparaging it inappropriate and unnecessary for standing analysis.

I've seen Alan Shore argue two cases in foreign jurisdictions, Texas and Canada. Each time he was derided from the bench as a patronizing [American/Bostonian] carpetbagger. They wouldn't put it on television if it wasn't proper.

Simon P writes:

Orin, by the same token, I could point out that your argument-style seems to rely on reducing arguments with which you disagree to strawmen and then mocking them. That's the second time you've done that here.

If you genuinely believe that is my "argument-style", I suppose that is something I cannot readily persuade you is incorrect. I will let others opine on whether that or is not my style; I do not think it is.

Simon P continues:

But it's a fair point. I rely on my comparison of the VC to the "Tales of Ribaldry" to carry the criticism. I can work it out a bit more.

Thank you for elaborating on your views. I appreciate it.

As you might expect, I find your conclusion that I am willfully naive to be quite incorrect. When I am posting about judicial practices, and specifically criticizing language in opinions, I am posting as a critic. I know that a number of law clerks and perhaps a few judges are reading -- both present and, more importantly, future -- and I want them to reflect upon the choices they are making and the judicial role that they embrace. It isn't "naive" to make arguments that criticize a particular approach on the ground that the criticized approach is common and unlikely to change. I don't pretend that my post is discovering the first-ever occasion that the criticized practice has occurred, or that my posts will magically change prevailing judicial practices. Rather, I want to offer my view as to what is proper, and explain the view and why I think it. The goal is to have a conversation and raise questions, not eradicate a way of thinking.

You are of course free to disagree, especially on the core question of what is the proper role of the judge. Many people do, and that's great: It's a hard question, and different people are going to disagree. But it seems rather strange to me to say that because we disagree, that one of us is therefore willfullly naive. Surely we can both be well-informed people acting in good faith, each stating our views and simply disagreeing with each other, without one of us dismissing the other as somehow simple-minded. Or so it seems to me, at least.

David Welker writes:

I seem to remember a similar move by Orin Kerr in being dismissive of other views when discussing the case of Pierre v. Attorney General when discussing the meaning of the word "intentional."

I seem to remember spending several hours explaining in detail why I thought the arguments were incorrect, and why even if they were correct, they did not matter to the outcome. If I was dismissive in the course of that, I sincerely apologize.

OrinKerr wrote:

If you genuinely believe that [reductive strawmanning] is my "argument-style", I suppose that is something I cannot readily persuade you is incorrect. I will let others opine on whether that or is not my style; I do not think it is.

Orin, I'm not unreasonable. If I have some good reason to believe that my assessment is incorrect, then I'll change my mind. Stuff like this doesn't help your case, though:

But it seems rather strange to me to say that because we disagree, that one of us is therefore willfullly naive. Surely we can both be well-informed people acting in good faith, each stating our views and simply disagreeing with each other, without one of us dismissing the other as somehow simple-minded. Or so it seems to me, at least.

Your position is so reasonable! Unlike mine, which apparently makes the preposterous claim that, whenever two people disagree, one of them must be willfully naïve!

You've omitted reference to my attempt to make sense of the claim that judges shouldn't do the sort of thing that Wiener has done, which led me to conclude that there doesn't seem to be any good reason to hold that claim. You've reduced it to saying that since we disagree over whether there are good reasons to hold that claim, one of us must be willfully naïve. You then say that you think it's rather obvious that can't be the case. And so it is, because you've set yourself up against a strawman.

You have some other stuff here about this being a disagreement between how judges actually do behave and how they ought to behave. But that wasn't the point I was making. You're not going to convince judges to be less political, because they can't be. They are political actors, and they will continue to be so as long as their legitimacy and their juridical prerogatives require them to be political, which seems to me pretty well built into our system. The sort of "politics" you want to expunge from opinions is this kind of superficial, grandstanding stuff, which, for reasons I've already outlined, are no more dangerous than the commoner politicking that happens in superficially formalist opinions every day. Are you really trying to sent the message to future clerks that they lie about what their judges are doing?

But Orin, if you would like to proffer some defense of your view of the "appropriate role of judges," please feel free to do so. I haven't seen any real argument on the VC, in this post or otherwise, justifying the claim that judges shouldn't weigh in on political matters that doesn't ultimately seem to derive from disagreement with the political persuasion of the judge. I've attempted to make sense of that claim on my own, but I've obviously failed to reach the same conclusion you do. So maybe there's some other reason you're holding in reserve that can make sense of it all and dispel finally my assessment that you're just mistaken about the way judges do, can, or ought to behave. Like I said, I'm not unreasonable; I'd love to see it.

I don't think it's unreasonable to think ideology drove both this case and Defenders, but I do find mentioning it as well as disparaging it inappropriate and unnecessary for standing analysis.

First of all, we both agree that this point was not strictly necessary for the dissenting opinion.

However, I don't think that mentioning this particular truth (that the case was ideologically motivated) is "disparaging." That is because I don't think that organizations like the Pacific Legal Foundation or the Defenders of Wildlife have anything to apologize for at all.

I also think it was reasonable to mention, because avoiding judicial entanglement in purely ideological disputes is a reason that the rule against generalized grievances exists.

I recognize that Ms. Severance is a real person. Nonetheless, she is a real person without standing, because the easement already existed when she bought her property. End of story. Only radical judicial activism could change that result.

For a lawyer, you don't seem to have a very strong grasp of the concept of standing. The alleged fact that the easement already existed would not mean that she didn't have standing; it would mean that she loses.

Standing is a separate inquiry from the merits of one's position.

David M. Nieporent,

Well, since you ventured forth to opine about my understanding, I will venture forth and straightforwardly assert that you are the one who is confused.

In fact, when it comes to the issue of standing, there is not always an absolute separation between what are artificially known as the "merits" and standing?

Why? Because standing requires injury. But injury and damages are also an element of pretty much any cause of action. Imagine that: an inquiry into standing may in fact explore some of the same issues that an inquiry into the merits would. I am sorry that this is such a new issue for you. I would think that since you were a lawyer, you would be able to grasp this elementary issue. But, that would be hoping for too much, apparently.

FYI, in Lujan v. Defenders of Wildlife, Justice Scalia laid out what most be shown in each stage of the litigation:

At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim," National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial," Gladstone, supra, at 115, n. 31

Obviously, lack of injury can also be shown as a matter of law.

Oh, something else should be mentioned. Edith Jones agrees with me and not you that inquiry into this issue is appropriate when considering the issue of standing. In the section of the opinion labeled Standing, she wrote the following:

B. Standing
The Officials contend that Severance lacks standing because any taking or seizure took place before she acquired the properties at issue. The Officials No. 07-20409 assert, and Severance disputes, that the easement attached to her properties no later than 1999, well before she bought them.
In the case of an alleged physical taking, like this one, “any award goes 5 to the owner at the time of the taking, and [ ] the right to compensation is not passed to a subsequent purchaser.” Palazzolo v. Rhode Island, 533 U.S. 606, 628, 121 S. Ct. 2448, 2463 (2001). However, even if the easement had attached to some portion of Severance’s properties before the purchase, the vegetation line shifted farther inland after the purchase. Because the State seeks to impose an easement on a different (and larger) segment of her properties than was covered at the time of her purchase, Severance has suffered an injury distinct from that of the previous owner.

So, who is right about this issue, you or me and Judge Edith Jones? I think the answer is obvious. Maybe you should, you know, actually know what you are talking about before you offer an opinion and especially before you attack someone else for supposed not knowing what they are talking about. (And for the sake of saying something positive, I should mention despite your behavior in this instance, I have seen value, on occasion, in some arguments you have made on this blog.)

It is totally disingenuous to think that the dissent's "context" comments factored into a legal analysis of standing.

Whether standing existed or not depends entirely on whether the taking Severance suffered existed before or after she took the property. This is because, if it occurred before, the claim was the previous owner's to bring, not hers. (This is a peculiar but fundamental aspect of takings jurisprudence.)

Thus, it should be very clear that the takings determination could be made solely on the basis of a temporal and character analysis of the restriction on Severance's property. These are objective facts and, a such, are not affected by the motives of the litigant and/or her attorneys, no matter how genuine or politically motivated. This renders any discussion of her or her firm's motives totally superfluous. And if such a discussion is superfluous, why mention it at all unless it is to express personal animus of the sort that is unbecoming of a judge?

In other words, Wiener's allegations either (1) improperly factored into his legal analysis, or (2) if not part of his legal analysis, were mentioned only to smear the plaintiff and her attorney. (Of course, even if the latter is true, it will still support the (I think reasonable) inference that the former occurred.) Either way, Judge Wiener departed from objective judicial decisionmaking and I think that is Prof. Volokh's point.

Ben S.

Interesting theory. But, the Pacific Legal Foundation admits to being a libertarian advocacy organization. So, I don't see pointing out that fact as being a "smear." I am sure the Pacific Legal Foundation is perfectly proud of what it is and does. Second, as has been noted, the courts are not in the business of adjudicating purely ideological generalized grievances. It seems that the judge thought that this case fit that description. So, he his reinforcing his legal reasoning, which appears below the section entitled CONTEXT, with the suggestion that, by the way, this is precisely the sort of purely ideological case that should not be heard under the doctrine of standing. Of course, the legal reasoning can stand on its own without this context, but I think the context is in fact helpful to understanding what the case is about.

Judge Jacques Wiener's dissent is truly dumb and obtuse. And his writing is turgid and pretentious. No wonder he is referred to as the Souter of the Fifth Circuit.

An ideological motivation for a suit doesn't prevent a plaintiff from having standing (not that the plaintiff in this case admits to any such motivation -- quite the opposite, in a comment she posted above).

Many ACLU suits involve ideological motivations and minimal financial injury -- rather than the potential loss of a home and/or property, as in this case.

Heck, even Rosa Parks's case was ideological. She was schooled by the Highlander School in civil disobedience. They trained her precisely so that she could get arrested and thereby challenge segregation.

No one suggested that she lacked standing, merely because her suit was part of a political crusade to end segregation.

So, who is right about this issue, you or me and Judge Edith Jones? I think the answer is obvious. Maybe you should, you know, actually know what you are talking about before you offer an opinion and especially before you attack someone else for supposed not knowing what they are talking about. (And for the sake of saying something positive, I should mention despite your behavior in this instance, I have seen value, on occasion, in some arguments you have made on this blog.)

Since you argued that the plaintiff didn't have standing, and Edith Jones disagreed, it seems rather odd for you to try to conscript her into your cause.

This seems out of line for both this case and the general case. After all, First Amendment rights including the right to petition the government for redress of grievances permit organizations to support lawsuits consistant with their ideology even if I think those lawsuits have no merit.

There may be an exception to the rule. For example, suppose a rich and powerful organization files hundreds of Establishment Clause cases for and against borderline government religious activities, and the other side points out that throughout its history, the organization has only sued to strike down prayers and exhibits that don't mention "Jesus" and has consistently paid to defend government activity that does. (or vice versa). And suppose the organization explicitly characterizes its mission as using litigation to bring Jesus into (or take Jesus out of) government. Suppose, moreover, that its resources were vastly greater than most other potential litigants to the extent that it effectively cornered the market on this type of legislation.

It seems to me one could argue that even if each and every case the organization selects has individual merit, by its consistent selection of cases based on a strictly sectarian agenda, and using the nuisance value of litigation to induce others to do its will, the organization (if sufficiently powerful and its activities sufficiently widespread) would be introducing bias into the federal litigation process with the express intent and effect of establishing religion.

The DeStephano (New Haven Firefighter) case also strikes as having implications that might potentially include a need to csometimes onsider the motive of a litigant in determining whether a government action in settlement of litigation can itself be a discriminatory action.

These hypotheticals suggest to me that this may not be a rule without exceptions; that sometimes the general motivation of an advocay organization that sponsors litigation may in fact be relevant to how a particular case should be decided. This is clearly not such a case, however. I think the plaintiff should lose, but agree the concurring language was not helpful or judicially appropriate.

To me, this has been an entertaining exchange, but I think it may benefit from somebody (that would be me) reminding one and all how this ideological war came about. It was in 1972 that the Citizens Advisory Council to the CEQ (headed by Laurance Rockefeller, and composed of some big-time bankers, Rouse (the developer), and Pete Wilson (then Republican Mayor of San Diego) came up with the recommendation that thenceforth the right to develop land should no longer be a private but a public one. Their motivation was that in order to protect the environment, severe property regulations whould have to be imposed, and in order to avoid constitutional claims when those regulations got to be confiscatory, the Supreme Court should overrule Pennsylvania Coal Co. v. Mahon, and abolish the concept of regulatory taking. Without saying so, they suggested that we adopt the essential provisions of the British Town &Country Planning Act of 1947 in which the Atlee Labor-Socialist government decreed that the right to develop land (i.e. to put it to new uses) would cease to be a private right and become subject to government "planning permission." To further that agenda here, a book was commissioned and written -- Bosselman, Callies and Banta, THE TAKING ISSUE. It was candidly polemical and urged SCOTUS to overrule Pennsylvania Coal. People supporing that view were dubbed "police power hawks" by Professor Daniel Mandelker, himself no mean "hawk." The book was printed by the Government Printing Office and sold for nominal amounts. It was widely distrbuted, and made quite a splash at the time. But it failed in its mission. In Keystone Bituminous v. DeBenedictis, SCOTUS came close but in the end upheld Pennsylvania Coal, even if Holmes, were he to rise from the deam, might have problems recognizing his handiwork.

And it was in response to that movement that conservative-libertarians mounted a counterattack through the likes of PLF, the Institute for Justice, etc., following the precedent established by the ACLU, NAACP, the Natural Resources Defense Fund, Sierra Club, and Community Counsel, to name a few. That being the background, I think it was just plain silly of Judge Wiener to launch his attack on people who would use the courts to further ideological agendas. The courts invited that phenomenon when they went into policy making on a large scale, and it ill behooves judges, whether Wiener or Scalia, to complain about it.