07 May 2017

Thirty-Five Characters

The Ninth Circuit — or, at least, the former Chief Judge of the Ninth Circuit — demonstrated some real judicial independence on Friday, with four words (thirty-five characters including spaces and punctuation). In context, those four words demonstrate some that is right and much that is wrong with contemporary American law.

KOZINSKI, Circuit Judge, ruminating:

Fisher v. Kealoha, No. 14–16514 (9th Cir. 05 May 2017) (PDF), slip op. at 11.

  • I'm pleased to see a judge actually labelling his opinion as "just thinking about something I don't have to decide, but that I think is necessary for nonlawyers to understand why the main opinion is so free of context." Such ruminations appear throughout opinions from other jurists, if seldom so explicitly labelled… and many of them at least advance the conversation, if not necessarily the case at issue.
  • But "ruminating" is not an approved signal appearing in the BlueBook — or any other manual of legal citation. And it's a per curiam opinion. So Judge Kozinski has just created an exceptionally interesting quiz question for first-year legal writing classes.
  • That has no precedential value at all. It is, at best, an advisory obiter dictum opinion saying that something else needs to be decided in the abstract, but that some kind of flaw in the matter at hand keeps it just a side issue. (It's a "something else" on which I think both he and the Supreme Court are wrong on linguistic, historical, and rational grounds, but that's just… ruminating with no precedential value at all.)
  • It also indirectly points out the problems with overrigid application of the advisory opinion doctrine by overnarrow consideration of what is a "controversy." It is perhaps understandable to allow a legislature a short period of time to revise existing legislation after being given a clear and final judicial directive that existing legislation is constitutionally infirm. It is perhaps understandable to allow the executive the same privilege regarding its nonlegislative policies and procedures. This is part of "separation of powers."
  • But there comes a point when the time for all deliberate speed has passed. Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 234 (1964). And even though the judiciary is only a part of a system of government — with highly proscribed powers on when and how it may act — there necessarily comes a point when it must take responsibility for the government acting as a whole. I think "a decade" is a reasonable period of time for legislation… presuming good faith in the legislature… darn, I've just destroyed my whole argument, haven't I?

Because, ultimately, that's what Judge Kozinski's rumination really is. He's relying upon a nine-year-old Supreme Court opinion that made further legislation and administrative directives necessary, however much (and with however much justification) one disagrees with that opinion, and poking various legislatures and executives in the ribs with his rhetorical elbow. "Do your job, man, before someone structures a mandamus action and I have to tell you formally to do your job." Given that firearm distribution is an emotional issue (leaving aside any substantive complexities and the evolving interpretation of Heller as "final but fatally flawed," albeit not quite a "self-inflicted wound"), that's about all he can do. So, perhaps, it was the wrong signal. Perhaps it should have been:

KOZINSKI, Circuit Judge, discontented but neither concurring nor dissenting:

except that the actual opinion is too civil (in the "civil conversation" sense).