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Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

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.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.

Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2018 End of Term, Howard Wasserman, Law and Politics | Permalink


Unsurprisingly, rule of law scholars have been talking about this for a long, long time. Classic examples of the problem (much more evil ones, of course---memo to right-wing readers, I'm not comparing Trump to these people, so please shut up in advance) are the situation of a judge in places like Nazi Germany or Apartheid South Africa.

One thought: at least sometimes, this kind of criticism from courts powerless to do anything about it has slightly shifted policy. For example, a number of beastly British detention order rules in the name of anti-terrorism were criticized, in terms of overriding human rights obligations, by the judiciary, which lacked the power to overturn them; these critiques probably led to their revision. (I discuss this some in my book.)

Worth a read on this in general: Dyzenhaus's _Hard Cases in Wicked Legal Systems_.

FWIW, in general, the sort of classic responses (other than "ignore the legal authority that binds the judge") tend to be:

A) Criticize, qua Reinhardt;
B) Read the evil use of power as narrowly as possible, force the ones using the power to make quite painfully explicit exactly what they're doing;
C) Resign.

Posted by: Paul Gowder | May 31, 2017 8:57:58 PM

Grudging compliance sounds like what lots of federal judges in the deep south did in the 1950s when faced with school desegregation. Except for those that just ignored Brown and manufactured reasons why it wasn't applicable to the case at hand.

Posted by: PaulB | May 31, 2017 5:22:34 PM

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