2d Circuit: Constitution Stayed (Update: Judge Scheindlin’s Press Release)

In a brief opinion, three judges of the Second Circuit Court of Appeals, sitting in the Thurgood Marshall Courthouse (thrown in simply for the irony) smacked Southern District of New York Judge Shira Scheindlin for telling the truth. She said:

“I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights. These issues come up, and I take them quite seriously. I’m not afraid to rule against the government.”

If you ask the government, the Mayor of New York City or the cops, on a day when they tell the truth, they will confirm that she’s not their favorite judge.  But their explanation is that she’s anti-cop. She’s not. It’s just that they define anti-cop as not being pro-cop, pro-government.

To the government, any judge who’s not for them is against them. They can’t bear not having the judge for them.  I called her independent, but then I lack the government’s need to be certain that the judge is my friend.

Jeffrey Toobin, who wrote the New Yorker article noted in the footnote, calls the decision sua sponte removing Judge Scheindlin from the case because her “impartiality might reasonably be questioned” “preposterous.”

Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it’s a common complaint from judges that the public doesn’t understand their work, and doesn’t care about what they do.  Scheindlin’s conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded.

She told the truth. If that was wrong, then the 7th Circuit wouldn’t allow Judge Posner in the building.  If that was wrong, then Judge Kopf better polish up his golf clubs. But this wasn’t a fun chat amongst friends, and that’s the aspect that gives rise to wonderment.

You see, in a few days, there will be a new Mayor of New York named Bill de Blasio, and he’s already expressed support for Judge Scheindlin’s ruling and said he would end police tactics that violated the Constitution.  Whether he will do as he promises as a candidate when he puts on the mayor hat has yet to be seen, but suspicions are strong that he means what he says.

So this was largely a non-issue, with the political administration of New York City on its way out the door and a new one coming in who planned to change the policy to respect the Constitution and the rights of black and Hispanic New Yorkers to walk the streets without getting tossed against walls to make the Compstat numbers.  A few more days and the whole thing is moot.

But the Circuit decided not to wait. No, it had to get its licks in before the politicians cleaned up their own mess.  And it had to stick in a poke of its own to Judge Scheindlin, just to let her know that the judges had it out for her enough to get in one gratuitous smack before it was over.

That this case is ripe for a political resolution is clear: the problem with Stop & Frisk is that it’s a program, not the legal concept. The program is unconstitutional. The legal concept is not. The program does not abide the constitutional limitations that the concept requires. There really isn’t much more to it than that. There never was.

The City of New York decided that its program, tossing young men of color at will and fabricating some lame excuse to do so, would make its streets safer. And while the argument can (and has) been made that picking the powerless as toss-ees is discriminatory rather than the wealthy on Sutton Place (who use a finer quality of drug), it would be unconstitutional regardless of who they targeted. And they targeted black and Hispanic young men. By the hundreds of thousands. For merely being there.

The Second Circuit says, “[I]n taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.”  It rings hollow. They stayed the remedies imposed by Judge Scheindlin, foremost of which is that she ordered the New York City Police Department to respect the constitutional rights of New Yorkers to be left alone when they’ve done nothing to warrant an intrusion on their rights.

So the Second Circuit stayed the order. They stayed an order that required the NYPD to honor the Constitution. They lifted the duty to conduct themselves in accordance with the limitations imposed by the Constitution. They really did.

If the Circuit’s claim that they “intimate” no view on the case rings hollow, it does not emit nearly as unpleasant an odor as their own covetous hold on the reins of this case.  You see, a secondary poke at Judge Scheindlin, set forth in footnote 1 to the opinion, is that she somehow did wrong by suggesting that if the case was brought, she would get it as a “related case” to others already in her courtroom.  This is business as usual, and her “suggestion” imparted nothing, absolutely nothing, out of the ordinary.

Yet the Circuit made it seem like she was begging the opportunity to take the City down.  The same Circuit, in the same opinion, writes this:

In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.

No other judge on the Second Circuit will get his hands on the case when it appears for its merits determination.  There will be no chance that another circuit judge ponders the question of why this panel relieved the City of its burdens under the Constitution. In the interest of judicial economy indeed, let there be no independent judge to explain why a panel of the Second Circuit, sitting in the Thurgood Marshall Courthouse, held that the Constitution is stayed and the judge who told the truth was tossed aside.

Update:  According to independent journalist Ryan Devereaux, Judge Shira Scheindlin has issued a press release addressing the 2d Circuit’s opinion:

SS Press Release



16 thoughts on “2d Circuit: Constitution Stayed (Update: Judge Scheindlin’s Press Release)

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  2. AP

    Am I missing something here? I may be wrong but hasn’t Justice Scalia has often commented on cases he’s decided and has made no secret of how he believes law and the constitution should be interpreted. Hasn’t he effectively been the model for many judges in the United States who like to mix it up outside the courtroom?

      1. AP

        I don’t know if this case will ever wind up in the USSC but I can’t wait to see how Scalia handle’s the … ahem … impartiality of Judge Schiendlin.

        1. Dan

          I don’t really know what you’re getting at. I’m not doubting you, but can you provide an example of a case where Scalia chimed in while it was pending? Are you referring to the gay marriage cases? I don’t really see an equivalency.

          1. SHG Post author

            When you’re a Supreme, there is nothing you can opine about that isn’t potentially coming your way eventually. That’s why Nino takes his chances.

            1. Dan

              I don’t think Scalia does anything particularly egregious about discussing cases that are under review. Many of the Supremes write books, give talks, give interviews, have views. There’s nothing wrong with having a well known view on a legal issue. (That’s part of why the POTUS nominates them). I think that’s different than for a trial judge to act in a way that suggests she isn’t going to determine the facts impartially. Not that I have any idea that that’s actually what Sheindlin did here, but I don’t think the comparison to Scalia or any of the Supremes is apt.

            2. SHG Post author

              I’m not saying that what Nino does is “particularly egregious.” I’m saying that Judge Schiendlin didn’t do anything wrong either. AP’s point is that Scalia would be hard-pressed to find fault with Shira Schiendlin given that he’s pretty free with interviews as well.

  3. Andrew

    At least we’ve won politically. Quick question-now that de Blasio is mayor, do you think he’ll do something similar to what Obama did in refusing to defend DOMA? So he could try to defend the case poorly to get a plaintiffs’ victory?

    1. SHG Post author

      Heh. Just got done chatting with Jacob Gershman at the WSJ Law Blog about this. If de Blasio keeps his promise, there’s a good chance he will resolve this matter by some sort of settlement before the matter goes to the circuit on its merits. I would think he will go for a settlement, not throw the appeal, and he has the unilateral power as mayor to make his police department adhere to the limits of the Constitution.

      And if did so, that would be a good thing.

  4. Andrew

    Shame. It seems like you really needed a senior judge for this-someone who knows they’re not getting that Second Circuit promotion, someone at the tail end of their career who’s not afraid of becoming the next Judge Baer. Hell, ask Rakoff-there’s a guy who probably lost his Second Circuit shot because of his death penalty ruling. Maybe he draws this case.

    Anyway, do you de Blasio will do what Obama did with DOMA? Or do a poor job of defending the case to get an adverse ruling, one that would prevent a future Bloomberg from just bringing it back?

    1. SHG Post author

      Just responded to the same question to another Andrew above. As for Judge Baer, such a terrible disappointment.

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