The Volokh Conspiracy

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Dampen The Fire On The Fifth Circuit

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Generally, workplaces are not static. Over time, leaders with different styles come and go. Organizations are restructured. Workers who do not work out will leave, or are asked to leave. New blood is brought in to reinvigorate the organization. And, if the workplace is failing, eventually, the organization itself may become defunct.

These rules do not apply to the federal courts of appeals. Their membership is largely static. New judges are added on an infrequent basis, while senior judges tend to stick around. There are no leaders. (No, the chief judge does not count). Every member of the court has an equal vote. And, with rare exception, judges who are unhappy remain ensconced in their life-tenured sinecures. Finally, federal courts cannot be abolished--well, they probably can't be abolished. These unique dynamics of the federal courts of appeals make interpersonal relationships very different than in traditional workplaces.

These principles came to mind when I read a recent Fifth Circuit decision, Sambrano v. United Airlines. The all-Texas panel includes three prominent conservative judges appointed by three presidents over the course of three decades: Judge Jerry Smith, appointed by President Reagan; Judge Jennifer Walker Elrod, appointed by President W. Bush; and Judge Andy Oldham appointed by President Trump. The case involved a hot-button issue: could a private employer require employees to be vaccinated. The legal issue was somewhat mundane: could a federal court issue a preliminary injunction in a Title VII case? (I wrote about that question here).

Judges Elrod and Oldham wrote a per curiam opinion, finding that a preliminary injunction was permissible. Judge Smith wrote a dissenting, finding that a preliminary injunction was not permissible. But Judge Smith's dissent went far, far beyond disagreeing about the legal principles. He seems to be sending a much broader signal that something is amiss with his colleagues, and on the Fifth Circuit.

First, Smith suggests in several places that Elrod and Oldham distorted the law to reach their preferred result.

Notice how few of these facts appear in the majority opinion. They would get in the way of a good story.

If I didn't know better, I might surmise that the majority didn't even read the plaintiffs' brief.

So once again, the majority junks our precedent to get the answer it wants.

Indeed, Smith writes that his colleagues distorted the law to achieve an outcome that conservatives would favor. He suggested the judges have a "favored cause" and a result they find "most satisfying."

Once again, the majority snubs the Supreme Court to remake the law for these plaintiffs and their favored cause.

I could discern no reason for the majority's selective orderliness, but for every error pointing toward the result my colleagues find most satisfying.

Smith also writes that "some quarters" will find the decision popular:

Instead, the bigger threat is the use of a new decisionmaking process that reaches a result which—while unavailable under established law—will prove popular in some quarters.

In some quarters, it may seem innocent enough to accept the majority's methodology (i.e., announcing major rulings in an unpublished opinion) for this important case only.

It is common enough to describe a decision as a ticket good for one ride. But Judge Smith ladles on an extra heaping of slop for this "blue plate special."

I call this the "one and done" method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. The obvious result is to foster whatever happens to be the "Blue Plate Special" cause on a given day.

Smith's criticism is not limited to his colleagues. He also trains his fire on the lower courts:

The rub is that by its ruling, this panel majority gives leave for any loose-cannon district judge[FN 96] or future Fifth Circuit majority of two to decide that a cause is so compelling that "the law be damned, we will find a way."

[FN 96] If there are no such district judges in this circuit today, someday there could be jurists who are delighted that Supreme Court and Fifth Circuit precedent of which they aren't fond need not be followed.

I have to imagine he has Judge Reed O'Connor in mind, but there are probably other recent appointees in the club. Recall that Judge Smith would have granted rehearing en banc in the ACA case that became California v. Texas. (Judge Smith has some history with Obamacare.)

Second, Smith suggested that Elrod and Oldham, and perhaps other judges, were being led astray by their "zealous" law clerks:

It's difficult to imagine what creative lawyers—not to mention federal judges spurred on by zealous law clerks—will do with these new tools.

This trope is all-too-common on the left. See Joe Patrice at Above The Law:

Though perhaps [Smith's] most insightful observation is where he zeroes in on the reality of the FedSoc clerkship pipeline. . . . FedSoc pumps out ideologues to push judges right-ward as clerks, those clerks become judges, the next set of clerks push them right-ward.

I would seriously second-guess anything I wrote if Joe Patrice found it "insightful."

I clerked for two federal judges, and am very familiar with many other judges. I can say, with a very high degree of certainty, that Judges Elrod and Oldham are not led by their law clerks. Without question, law clerks try to pitch their judges on one idea or another. But the judge has the final say. When I clerked, I gave the judge a draft dissent that would have made some very sharp points. I never received any feedback on the draft. Later, I learned that the judge discarded my draft, wrote his own opinion, and filed it. Such is the life of a law clerk. To be sure, there are stories that some infirm Supreme Court justices allowed their law clerks to run the show. (Justices Douglas and Blackmun come to mind.) But the suggestion that Elrod and Oldham are in such a state of decrepitude is not plausible.

Moreover, it is insulting to suggest that federal judges are subordinate to recent law school graduates. These sorts of barbs unnecessarily increase the temperature on the court, and cast a pall on all law clerks, including those of Judge Smith. It's best to leave the law clerks out of these clashes. Judges can hash these issues out at conference, or over Bourbon on Bourbon Street. Not in judicial decisions.

Third, Judge Smith shot up a flare over the Gulf of Mexico.

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today's ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

Smith tries to soften his blows, and suggest that his "conscientious" colleagues were "well-intentioned."

Alleging "ongoing coercion" now supplies a private right to preliminary injunctive relief—not because of text, history, or precedent, but because two well-intentioned but misguided judges say so.

The majority, with what I'm sure are the most wholesome intentions, junks facts, text, history, and precedent, resulting in a one-off change in the law that alters the result for these parties.

This is no personal criticism of my two conscientious co-panelists, who serve with integrity, dedication, and skill. It's a main reason we have panels of three, allowing for honest differences on matters large and small.

I found these caveats largely unpersuasive. If Smith held these sentiments, his sixty-page dissent would not have been barnacled with ad hominem attacks. If the Good Ship Fifth Circuit is aflame, then Judge Smith helped to kindle the blaze. Everyone on the court should take a step back, and dampen the fire. They'll all be aboard for a long time to come, and the rising tide will lift everyone.

NEXT: The Academic Freedom Podcast #12 on Encouraging Campus Free Expression

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  1. I clerked for two federal judges, and am very familiar with many other judges. I can say, with a very high degree of certainty, that Judges Elrod and Oldham are not led by their law clerks.

    Don't you think that Judge Smith is in a better position to determine that than you are?

    I find it fascinating that in no way do you engage with the substance of a shockingly strong dissent from a very conservative judge.

    1. I find it fascinating that in no way do you engage with the substance of a shockingly strong dissent from a very conservative judge.

      You are clearly not familiar with Blackman's posts.

    2. I wondered about this too. IANAL but I always had the sense that Smith was quite conservative and was hoping for some discussion of the merits of the decision. Are Smith's assertions, however rudely stated, correct? Is there more support in the law and precedent for the dissent or the majority? I'm hopeful that some of the comments will actually address the opinions themselves since Josh chose not to.

      1. I would merely offer that none of the judges actually know, as they spent no more than the obligatory three minutes in reviewing the clerks' summary of the case.

        But every once in a while, even a judge can't stand the stench.

  2. Are Smith's comments really "ad hominems"? He argues basically "Your arguments are completely unsound for [50 pages of reasons], therefore you are biased and results oriented" and not "You are biased and results oriented and therefore your arguments are completely unsound." I've always understood the former to be mere insult and not ad hominem. You can argue whether it's impolitic to include insults, but let's not accuse Smith of a logical fallacy that he doesn't commit.

    Now conversely, Josh's line, "I would seriously second-guess anything I wrote if Joe Patrice found it 'insightful.''' That sounds like an ad hominem, which he then couples with valid (but weak) argument below. That part was definitely the chef's kiss on a pretty weak Saturday post from Josh.

    1. I find that internet morons consistently misunderstand what an “ad hominem” is, while engaging in the very same technique themselves. Not surprised to see that Josh is among them.

  3. It has been 0 days since VC was made to look stupid by prof Blackman.

  4. I would seriously second-guess anything I wrote if Joe Patrice found it 'insightful.'

    I don't think there's any danger of anyone finding anything that you write insightful.

    Other than yourself, of course.

    1. This comment is also funny because Blackman posts are clearly the ATL of the FedSoc nerd world.

  5. Even as a non-lawyer, I found Smith's dissent to be entirely digestible, and every argument presented was meticulously documented (and absolutely convincing).

    The fact that Professor Wannabe found fault with it proves Smith is right beyond any doubt whatsoever.

  6. "To be sure"

    This must be the most annoying turn of phrase I've come across recently (and not just Blackman). Completely useless text. This rates with 'um' on my scale of 'terrible writing habits'.

    1. "I'm just saying" is the worst.

  7. "This trope is all-too-common from partisans of every stripe"

    FTFY.

    And that, btw, is why you don't write judicial dissents like this. It's very tone deaf not to realize somebody could say the exact same thing just as (in)accurately about your own opinions on controversial topics.

    This should've been in the "felt good to write, now delete it" pile.

    1. Heaven forfend that a judge EVER tell the truth! When I see a case that touches on a political dispute, the first thing I do is look at who put the judges on that bench. You can predict the outcome in that case with well over 90% accuracy.

      Anyone who still thinks that "equal justice under law" is attainable in our kangaroo courts should not walk, but run to the nearest insane asylum.

      1. You're only looking at a fraction of the cases if you're looking at the ones dealing with live constitutional issues.

        1. A large fraction? A small fraction??

          1. I'm right either way, so pbthththththth.

  8. "Finally, federal courts cannot be abolished--well, they probably can't be abolished."

    In 1802, Congress repealed the Midnight Judges' Act* and threw judges appointed under that Act out of office.

    https://www.britannica.com/topic/Judiciary-Act-of-1801

    *Not the law's real name

  9. "He suggested the judges have a "favored cause" and a result they find "most satisfying.""

    What? No way would that ever happen!

  10. Judge Smith: "If I didn't know better, I might surmise that the majority didn't even read the plaintiffs' brief."

    Josh: "I clerked for two federal judges, and am very familiar with many other judges. I can say, with a very high degree of certainty, that Judges Elrod and Oldham are not led by their law clerks."

    Judge Smith knows better, and so do I. The facts speak for themselves. E.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (~150 rulings in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours); Stephen Breyer, Administering Justice in the First Circuit, 24 Suffolk U. L. Rev. 29, 32-33 (1990) (typical appeal “takes only a little of their time”). As Judge Murnaghan of the Fourth Circuit openly admitted, “it is well known that judges may put considerably less effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law. Wilson v. Layne, 141 F.3d 111, 124 n. 6 (4th Cir. 1998) (Murnaghan, J., dissenting), et al., ad nauseam.

    For the vast majority of litigants, appellate review is illusory. Judges don't even read the opinions they deliver, and are less involved in the finished product than the Domino's Pizza delivery guy has your double-pepperoni. Judge Arnold pulled the fire alarm in Anastasoff, but in the past two decades, the resulting blaze has laid waste to equal justice under law.

    1. Have you ever bothered to talk to an appellate clerk when weaving this grudge you have wound so tight?

  11. As a non-lawyer or legal scholar reading these opinions, the most reasonable and persuasive argument is almost always the one I just read. If this is a common effect, perhaps they should put the dissents first.

  12. The most insightful conclusion to be drawn from this piece, is that Professor Blackmun never got over the early-career trauma he describes:

    When I clerked, I gave the judge a draft dissent that would have made some very sharp points. I never received any feedback on the draft. Later, I learned that the judge discarded my draft, wrote his own opinion, and filed it.

  13. Moreover, it is insulting to suggest that federal judges are subordinate to recent law school graduates. These sorts of barbs unnecessarily increase the temperature on the court, and cast a pall on all law clerks, including those of Judge Smith.

    Ilya Somin clerked for Judge Smith. I don't see him complaining.

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