The Good, the Bad, and the Judicial Hombres: Civil Dissent at the Bench

          

           Judge Reinhardt could not stop Andres Magana Ortiz’s deportation under law, but no law or rule prevented him from protesting the executive branch’s decision to deport. In a touching concurrence, Judge Reinhardt lamented:

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

See Andres Magna Ortiz v. Jefferson B. Sessions III, Attorney General, et al., Cause No. 17-16014 (9th Cir. May 30, 2017). 

          Undoubtedly many if not most people who read Judge Reinhardt’s concurrence will be moved by his sentiment when faced with the real-life impact on Magana Ortiz and his family. And everyone should encourage others to take a strong moral stance against the type of injustice raised by Judge Reinhardt’s concurring opinion. But should judges be encouraged to interject their personal moral or political opinions in their judicial opinions? Should the judicial opinion serve as a conduit for civil dissent? 

          Civil Dissent by Obedience to Official Rules and Policies. 

Civil dissent comes in many forms, from peaceful protest to open violation of official rules, and even in the form of strict obedience to official rules. This latter form of civil dissent has been referred to as “uncivil obedience.” See Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 COLUM. L. REV. 809 (2015); cf Daniel R. Correa, Civil Dissent by Obedience and Disobedience: Exploiting the Gap Between Official Rules and Societal Norms and Expectations, 8 Wash. U. Jur. Rev. 219 (2016) (arguing that “uncivil obedience” is really just civil disobedience and that the term “uncivil obedience” should not be applied to law-making or law-executing institutions).

“Uncivil obedience” is defined by Professors Bulman-Pozen and Pozen as a deliberate act that conveys criticism of a law through obedience to all applicable positive law, intending to change or disrupt that law or policy by calling attention to the act’s formal adherence to law while departing from the manner in which society customarily follows the law or expects the law to be applied. They include acts by individuals as well as by state and federal legislators, and state and federal executive officials, including the President.

The only government branch excluded from the “uncivil obedience” definition by the authors is the judiciary:

Judicial application of the law is unlikely to qualify as uncivil obedi­ence for a distinct set of reasons. In contemporary American practice, judges in particular are expected to attend carefully to the letter of the law. Even when they construe a directive in a literalistic manner, it will therefore rarely come across as an ironic or inflammatory intervention; it is more likely to be seen as ordinary judicial fare. Judges are also believed by many to be authoritative interpreters of legal texts, so that their rulings are seen as elaborating the underlying law rather than changing or challenging it in some reformist fashion. While we can imagine hypo­thetical examples of judges communicating a reformist intent through subversive attention to legal language (for instance, a judge sentencing at the very top of the guidelines range in order to protest draconian crim­inal penalties), and while our categories might be extended to embrace more judicial behavior, we are skeptical about the prevalence of judicial uncivil obedience as we have defined the concept.

          To determine whether Judge Reinhardt’s concurrence qualifies as a form of “uncivil obedience” or civil dissent, we should consider the nature of a judicial opinion, its purpose, function, and scope.

          What is a Judicial Opinion?

          Judicial opinions issue to inform the parties and the public of a court’s decision in resolving a dispute. Since courts are held out as law-applying institutions, judicial opinions generally include an analysis of the law and operative case facts to justify the court’s conclusion. This justification is directed to the parties, appellate courts, and the public at large, since judicial administration has as a primary goal consistent application of law to promote other Rule of Law principles, including prospectivity, predictability, and systematicity—Systematicity means that the legal system’s rules “present themselves as fitting or aspiring to fit together into a [coherent] system,” one in  which citizens are not confronted with “contradictory demands—for example, with rules that require and prohibit the same conduct at the same time and in the same circumstances.” See Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 33-34 (2008).

          With appellate opinions, sometimes one or another judge may issue a concurring or dissenting opinion. A concurring opinion is one in which the judge(s) agree(s) with the outcome or resolution by the majority opinion but offers additional or different legal of factual reasons as to why the outcome is correct. A dissenting opinion disagrees with the majority outcome for various reasons, for example, differing interpretation of legal texts, differing application of operative facts to law, or differing opinion as to the scope of judicial power and authority.

          On the whole, judicial opinions, whether majority, concurrence, or dissent, are party-adversary-centered resolution statements which purport to legally bind the parties to the suit and future courts when confronted with similarly situated parties under the same or similar facts or circumstances.

          Improper Use of Judicial Opinion

             Judge Reinhardt's concurrence drew attention to the fact that he was following all positive law. There was no rule of law that prevented him from offering a personal opinion in a concurrence. He also drew attention to his belief that the legal outcome did not comport with the way people expect the law to be applied. He made it clear that the outcome was unjust and the judicial system stained as a result. For all intents and purposes, Judge Reinhardt's concurrence would qualify as an act of "uncivil obedience," as Professors Bulman-Pozen and Pozen define it, and certainly, in any event, qualifies as an act of civil dissent.

          A judicial opinion is not the place for civil dissent. Judge Reinhardt’s protest is especially troublesome because his reasons for objecting to the outcome, though agreeing that the outcome must legally obtain, were from his position as a “citizen,” and not as a judge issuing a judicial opinion.

          Judicial opinions, including concurrences and dissents, often serve as persuasive authority for future judicial opinions, including changes in the law, but only to the extent that the persuasive authority actually makes a genuine statement about the law. Judge Reinhardt’s concurrence raises a theoretical question that speaks to the abstract question, “what makes something law.” From a positive law standpoint, Judge Reinhardt concedes that he must “concur as a judge” with the legal outcome because the law is clear. But he objects to what he personally considers injustice to the Ortiz family and to the indignity he feels in being a participant in the legal apparatus that makes Magana Ortiz’s deportation possible. Underlying this objection is the question whether an official rule or act that is unjust qualifies as law; asked another way, can anything properly called “law” work or promote injustice? Judge Reinhardt concedes that injustice and law can occupy the same space by concurring with the outcome—One might be reminded here of a famous quote from Oliver Wendell Holmes, Jr.: “This is a court of law, young man, not a court of justice.”

          There is a forum for civil dissent available to Judge Reinhardt. As a citizen, he can participate in public protest in the streets, in write personal blogs about political injustice, vote for legislators and executives (at the state and federal level) whose policies align with his own, among other forms of civic engagement and civil dissent. But the judicial opinion is not a proper venue for civil dissent. The risk is far too great that public confusion as to what makes something law or how the law is made may arise when judicial opinions present themselves as legal mandates, on the one hand, and personal opinion pieces on the other hand.