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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, September 24, 2014

"reluctantly dissenting"

Michael Dorf cites a case of a lawyer and non-lawyer viewing things differently.  The debate is a bit unclear, but think perhaps the other person might have made an argument regarding international law -- as a matter of principle, wrongful ownership should mean something, even if it is not accepted to be the case as a matter of current law. A sort of natural law argument, perhaps.  What "ought" to be true can eventually influence what "is" true in this area.  The Hawaiian case is interesting either way, with or without reading Sarah Vowell

As I noted in the comments, there often is a way the bridge the gap, even if (clarifying my remarks here) there is some gulf (e.g., my comment that there is a way to allow a state to go doesn't totally address the claim the state might have a right to do so).  It's particularly hard at times online, but also hard other times, to try get to a point of agreement.  Arguments often involve a lot of baggage, the core issue clouded.  Personal fights have this problem repeatedly -- one female comedian, e.g., noted the stereotype that men argue a certain thing, women use fights to bring up the kitchen sink.

A related interesting blog entry addressed the lesser known "reluctantly dissenting" opinion though who's really surprised that this apparent take-off of "dubitante" was written by Judge Kozinksi (can Scalia please retire so this man can be nominated? Republicans will probably find him not to their liking, but really, come on).  The dissent finds this is one of the times where law (particularly apparent binding precedent) and justice is so far apart that it is worthy of special note.  After all, can't just recuse yourself every time you have to hand down a really bad decision.* 

The case was a closely decided en banc ruling, but the judge's dilemma will arise eventually in a less divided case.  At times, it will rest on law that affects the young overmatched defendant liable to be in jail for years:
I am dismayed that Sessom's fate-whether he will spend his remaining days in prison, half a century or more caged like an animal-turns on such esoterica.  
Federal habeas rulings, especially given federal legislation in the 1990s to limit habeas relief in lower federal courts (roughly speaking -- my understanding is that the realistically no chance in hell option of direct relief to the USSC is left open), do often turn on such things. Objectively unjust state rulings are left in place because it is not a clear violation of current USSC precedent.  Still, given the nature of law, you will always have some cases that turn on what amount to be fine lines.  We hope that on balance some rough justice will be served, but it's a messy business.

I appreciate what might be called a form of judicial empathy here, mixed with a compulsion to follow judicial duties -- as with the succession matter, there might be a difference between the ethical choice in the system and some total sense of right and wrong.  The "caged like an animal" reference as well -- it is good to remember the inherent cruelty, if not as that term is understood in the Eighth Amendment (or is it the "usual" nature that is okay?), of our penal system.  In the future, likely will be deemed barbaric.


* The article cites another 9CA judge; the full quote at the link:
"My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn," he said at the time. "If I had to follow my conscience or the law, I would follow my conscience."
When does an appeals court judge particularly really ultimately have to make such a choice?  And, is following USSC precedent, even if it results in injustice (the rub is what that means), a violation of conscience for a judge?  Such judicial ethics questions surely have led to some theorizing.

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