Is That Legal?

Wow. I've never heard anyone so baldly state that before.

Yes, of course, it doesn't matter what the judge did to reach their conclusion, as long as it's the conclusion you want! The ends justify the means, after all!

On the other hand, I was always under the impression that appeals courts don't look at the decision, they look at how the decision was reached. Which means that if the judge's reasoning is as terrible as some people make out then it's practically guaranteed that the appeals courts will over turn that judge's decision.

Remember - only the original judge looks at the facts of a case, the appeals courts look at how the judge's decision was made - which means this decision could be overturned "on a technicality" as people like to say.

Michael,

You're actually precisely wrong. The appellate court is bound by any findings of fact made by the trial judge, but is not at all bound by the reasoning. And, in fact, if the lower court's decision is sustainable on ANY basis, including bases not even considered by the trial court, the appellate court should uphold the trial court's result. And it's misunderstanding such as yours that make me so angry about comments such as those of Ms. Althouse's, which distract from the real question (is the NSA intercept program legal?) with a false one: is Judge Taylor's decision sufficiently judicial?

this was a ruling on a summary judgment motion, wasn't it?

so any criticism aimed at the judge's decision would hopefully be aware of the way summary judgment works? because apparently, many of the Judge Taylor's critics aren't fully on the up and up with civil procedure.

Comments here: http://glenngreenwald.blogspot.com/2006/08/grading-law-professors-apologies-due.html

Do you use the same standards when you grade your law school exams, Eric? 'Gee, it doesn't matter that this student misconstrued half the relevant cases and forgot the other half, he wound up with the "right" answer, so that gets an A.'

Somehow I doubt it.

Shouldn't we expect at least the quality of legal reasoning from a federal district judge that you demand from your 1Ls!

The most important thing a judge does is make a decision on the case before her. It is that decision and its rightness that is reviewed on appeal, not the quality of the judge's reasoning or writing. My students, on the other hand, are told quite explicitly that they are not being graded on their answers but on the quality of their reasoning and their writing. I think we make a mistake when we criticize a judge as if we're criticizing a student or a novelist. Different writers write for different purposes. I might wish Judge Taylor had written her opinion differently, but that is a trivial issue compared to what really matters: whether Bush can so blithely sidestep FISA. And when the NY Times gives such prominent space to someone as stylish in her way as Ann Althouse, I would hope it wouldn't be on trivial things when really important ones are at stake.

[by the way, Eric is on vacation.]

Peter --

Yes the judgement on appeal is what gets upheld or reversed, but that hardly excuses the opinion. Most experts believe that the strongest argument against the NSA program is not that it is unconstitutional but that it violates FISA. Judge Taylor ignores these arguments, and instead asserts that the program violates the Fourth and First Amendments without any analysis to support her assertions -- a particularly problematic thing to do when resting so momentous an opinion on what are (in some cases) quite novel constitutional claims. Moreover, her opinion ignores relevant caselaw, fails to acknowldge (let alone address) some of the serious arguments made the contrary, and is filled with irrelevant rhetoric. When so much is at stake, I think we can expect a bit more from a federal judge.

JHA

Jon,

There's a difference between "we can expect a bit more from a federal judge" and what in fact the commentators on Judge Taylor's writing have provided. If the commentary reflected that Judge Taylor's opinion is no more binding on the reviewing court than any brief would be and that the strong weight of scholarly opinion is that Judge Taylor's result is right (on the FISA grounds, which leaves the constitutional grounds unnecessary to reach), then I'd be better able to accept it. But, as the comments above make clear, that's not how these commentaries are being taken. And, honestly, I'd expect more from any Administration than the arguments this one has been advancing in connection with executive power.

I think you miss the point, Peter (apologies to Eric). One of the main reasons for having judges issue opinions instead of decrees is to bolster the legitimacy of their holdings. Unlike Congress or the President--both of whom have the legitimacy inherent in having been elected, judges need to tell us why they're acting as they do. Otherwise, the ruling of an unelected court is no more than an exercise in naked power.

Peter --

I still think you protest too much. No one is defending the adminsitration here. Indeed, many of those who have piled on Judge Taylor (my VC colleagues, Jack Balkin, etc.) have been quite critical of the Adminitration's arguments. But that hardly excuses Judge Taylor for her embarrassing opinion.

First, those of us who have been critical of Judge Taylor have done more than critique her reasoning. We have noted the complete absence of any reasoning whatsoever to support her most ambitious claims.

Second, to say that the Bush program is illegal is not to say that Judge Taylor's decision was correct. Among other things, there are serious justiciability questions, and a real possibility the case could be reversed on standing grounds.

Third, to say that the NSA program violates FISA is not to agree with Judge Taylor, as Judge Taylor never dealt with this point in any detail. Instead, she held that the program violates the Fourth and First Amemdments. Not only was it completely unnecessary (and prudentially improper) for her to reach these constitutional questions, she likely got them wrong, for many of the commentators who think the NSA program is illegal do not think it raises serious Fourth Amendment problems. (The First Amendment argument is barely worth comment.)

Fourth, there is an important distinction between a holding that the NSA surveillance program vioaltes FISA and a holding that it violates the Bill of Rights. In the former case, the political branches would retain the ability to authorize such a program. In the latter case, they might not. Thus, the practical effect of an appellate ruling that the NSA surveillance vioaltes FISA would be quite different than the practical effect of Judge Taylor's ruling.

Peter, if all of this is no big deal, why do we expect trial courts to issue written opinions at all? Why should we expect anything more than a one sentence order for each finding of law?

The fact is that Judge Taylor's opinion is far worse than the average poorly reasoned opinion -- and it addresses issues far more momentous than th eaverage important federal case. For these reasons, I think Judge Taylor has amply earned the criticism it has received from commentators across the political spectrum. I also believe that it isquite useful to us, as educators, insofar as it serves as an example of how not to contruct legal arguments.

JHA

I think Judge Taylor has amply earned the criticism it has received from commentators across the political spectrum. I also believe that it isquite useful to us, as educators, insofar as it serves as an example of how not to contruct legal arguments.

It's not the criticism that bothers me. It's that many critics seem to be oddly unaware of the role their very public arguments and comments to the media are playing in the larger political discourse. An untold number of commentators have cited expert criticism of Judge Taylor's rhetoric to dismiss the case's merits, buttress support for the specious Spector legislation, and in many instances advance the out-of-control judiciary narrative.

That doesn't mean legal critics should stay silent. But they should be cognizant of the other arguments they're sanctioning - intentionally or not - by failing to provide context.

I'm no lawyer, but it seems to me that written legal opinions are quite important. After all, lawyers and judges are quoting each other's opinions all the time. As one commenter pointed out, if they're not important, why have them?

It also seems to me that the call on law professors to hold their tongues lest they provide ammunition for others seems silly. Couldn't we say that about any political comments?