Tag Archives: dissents

Ethics Quote Of The Day: Five Ninth Circuit Judges

“We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.

For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.”

—-Five judges of the U.S. 9th Circuit Court of Appeals  (Judges Jay Bybee,  joined by Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta, attacked what Bybee called the “fundamental errors” in the February decision of a three-judge panel upholding the temporary restraining order that blocked President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries.

The opinion denounced the panel’s ruling as a “clear misstatement of law,” and stated that the five, constituting a larger number of judges than the three judge panel whose contrary holding was described as a “unanimous” 9th Circuit decision, had an”obligation to correct” it for the record.

“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the five judges stated.

Currently, the President’s revised order is held up by an even more widely criticized temporary restraining order issued by  U.S. District Judge Derrick K. Watson. As well as following many of the same lines of activist judicial reasoning the five judges criticized in their dissent, Judge Watson’s opinion heavily relies  on the campaign rhetoric of President Trump and statements by  chief aide Stephen Miller in TV interviews. This means, as several critical legal experts including Alan Dershowitz  have pointed out, that the exact same order, if issued by Barack Obama, would not have been blocked, and would have been found Constitutional.

Now that’s a double standard!

In criticizing their colleagues, the five judges said that the panel “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) and ignored entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977).  The Supreme Court in Mandel recognized that First Amendment rights were implicated by an executive action but decided…

“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”

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Unethical Quote of the Month: Justice Antonin Scalia

Scalia

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia, excoriating his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling today,  authored by Kennedy,  that same-sex marriage was a Constitutional right  no state could deny. Scalia filed an angry and intemperate dissent, low-lighted by this comment in a footnote.

Wrote Prof. Stephen Gillers, legal ethicist:

“How after this can Kennedy work with him?  Scalia has himself “descended” from the manner of argument found  in  opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.  Scalia sets a bad example that will harm civility in lower courts and at the bar.”

Exactly.

The rest of Scalia’s dissent is hardly more restrained, either.

You can read the opinion and dissents in Obergefell v. Hodges here.

UPDATE: Here’s a screenshot of another selection, courtesy of Slate:

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Arguing with the majority’s wisdom and legal analysis is one thing, mocking a Justice’s writing style is quite another—unprofessional, uncollegial and below-the belt. Yes, Nino is a much better writer than Kennedy, but belittling his efforts shows neither proper judicial temperament nor appropriate respect for the Court itself. Some commenters excuse this because they disagree with the ruling: Irrelevant. Check your rationalizations, especially #2. The “They’re Just as Bad” Excuse, or “They had it coming.”

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Filed under Ethics Alarms Award Nominee, Ethics Quotes, Etiquette and manners, Law & Law Enforcement, Professions