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Tuesday, December 08, 2015

Technically . . .

I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."

This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.

It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?

Posted by Howard Wasserman on December 8, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


You're no Jew, bruv!

Posted by: Richard | Dec 10, 2015 5:15:50 PM

JJ makes a good point and "we lawyers" suggests s/he is aware of nuances here.

Posted by: Joe | Dec 10, 2015 10:05:26 AM

But especially with respect to constitutional law, the distinction matters in evaluating the legality of our officials' actions, especially whether they are complying with their oaths.

Posted by: Howard Wasserman | Dec 10, 2015 7:01:57 AM

Isn't it a strange world we live in where the decision isn't "binding," yet a person can be punished for not following it by being brought into court, issued a judicial order to comply with it, and mandated to provide "attorney's fees" and "sanctions for non-compliance"? Most normal people would consider that to be a fair definition of the word binding - the fact that it isn't is a distinction only we lawyers could love. (And why most people find the 'technically true' distinction useful, Professor Wasserman's distaste for it aside.)

Posted by: JJ | Dec 10, 2015 1:47:33 AM

As Shakespeare put it when discussing the frequent misuse of the objective case in first-person singular pronouns: "Hath not a Jew I's?"

Posted by: Steve Lubet | Dec 8, 2015 4:51:18 PM

Jesus considered himself Jewish too, I gather.

Probably not a worthwhile thing to wade into -- Prof. Segall covers it some more at Dorf on Law, anyways. They address sensible concerns but in a way that is open to criticism allowing the other side to call them out w/o necessarily refuting larger criticisms. But, that might just be a lesson in itself.

Posted by: Joe | Dec 8, 2015 11:36:45 AM

Even Jews are encouraged to speak English to speak good English.

Posted by: Jimbino | Dec 8, 2015 11:16:40 AM

I'm Jewish.

Posted by: Howard Wasserman | Dec 8, 2015 10:39:36 AM

"This is why I forbid my students from using the word "technically."

In the interest of maintaining what's left of the English language, you should forbid your students to use "forbid ... from."

As in Matthew 19:14 KJV: "But Jesus said, Suffer little children, and forbid them not, to come unto me: for of such is the kingdom of heaven."

Posted by: Jimbino | Dec 8, 2015 10:18:55 AM

Nicely put.

For anyone who does want to wade into the debate, my reply to the Posner/Segall response is here http://www.nationalreview.com/bench-memos/428133/feeble-posnersegall-response-ed-whelan and my initial critique is here. http://www.nationalreview.com/bench-memos/427954/puerile-posner-ed-whelan

I also explain in a comment to Prof. Yung's post that he misunderstands the Posner/Segall argument. http://concurringopinions.com/archives/2015/12/posner-segall-v-scalia-whelan.html/comment-page-1#comment-194199

Posted by: Ed Whelan | Dec 8, 2015 9:50:54 AM

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