Reliable sources confirm that Stewart Baker is not a parody poster at the WaPo Conspiracy, but is in fact a real person.  Thus, his latest post, elevating the opinion of FISC Judge Rosemary Collyer over the opinion of Judge Richard Leon in Klayman v. Obama is not, I repeat, not meant as satire.

But what has to hurt is Judge Collyer’s dead-pan takedown of Judge Leon’s hyperventilating prose. And in a parenthetical, no less.  Summarizing Judge Leon’s reasons for not following Smith v. Maryland, Judge Collyer writes:

The NSA program, on the other hand, “involves the creation and maintenance of a historical database containing five years’ worth of data” and might “go on for as long as America is combating terrorism, which realistically could be forever!” Id. (italics and exclamation point in original).

Yes, indeed they were. Which raises two questions about Judge Leon’s opinion:

1. Is this the first judicial opinion rendered unpersuasive by its punctuation?

2. Was his CAPS LOCK key broken?

Hey, Stewart, did you draw a tin foil hat on Judge Leon too? Good one, Stew.

Like Judge Collyer, I’m not a fan of using gimmicky punctuation or typeface to make a point. Emphasis is best added by the use of language that says what it means to say, although that tends to involve nuance that flies over the heads of a great many, or worse, offends people by its clarity, which is interpreted as harshness.

But ridiculing Judge Leon’s opinion for his use of italics and an exclamation point is even less worthy of a judicial opinion.  As for Baker’s seizing upon it to ridicule Judge Leon, that’s just vulgar.  So you don’t like his punctuation? Does he dress funny too?

Judge Leon did something we, meaning those of us disinclined to adore precedent to the exclusion of error and change, the legal establishment, finds extremely unpleasant.  He refused to go with the flow.  He refused to take law, formed at an earlier time, under very different circumstances, in a remarkably dissimilar world, and just apply it rote.  He broke from precedent.

Baker notes that Judge Leon is the outlier:

The latest NSA data dump is a set of declassified pleadings on the 215 metadata program. The program has been upheld by all the Foreign Intelligence Surveillance Court (FISC) judges and by district court William Pawley in New York.  It was, however, ruled unlawful once — by DC district judge Richard Leon. Judge Leon’s opinion was colorful, but it hasn’t proved especially persuasive.

To suggest that Judge Leon’s opinion wasn’t “especially persuasive” grossly misstates the case. The FISC judges and Judge Pauley adhered to precedent, in this case Smith v. Maryland, a 1979 opinion approving the use of a pen register and holding that it was not a “search” under the Constitution.  While the opinion was the precedent to be applied, Judge Leon’s premise was that the rationale belying Smith strained beyond the breaking point when applied to seizure of every person’s metadata.

Not exclamation points. No emphatic italics.  No punctuation to cause Baker to sneer or judges who are slaves to precedent to ridicule.

There is no easy way for a judge to make a clean break from the past, to hold that the rules held by higher courts no longer apply. Some will argue, with some merit, that a district court judge isn’t the one to make such a decision, that he is duty-bound to accept the law as a now-dead judge held it to be and apply it, no matter how much has changed, how inapplicable it is, how much he thinks things have changed to render it no longer good law.  Be a good little judge and follow precedent, no matter what.

Others don’t see a judge’s job as being slavish adherents to doctrines and precedent that can no longer be rationally applied.  It’s not an issue of “living Constitution,” but the tendency of the judiciary to remember the rubric and forget the rationale.  When the reasons for a holding change, then the merit of the precedent must give way.  Just because a decision exists does not mean that the world has similarly stagnated. Life goes on.

And if the worst that Judge Collyer and man-about-the-airport-security-line Stewart Baker can say of Judge Leon is that his use of italics and punctuation is suspect, that’s pretty weak sauce.  The growth of technological capabilities has rendered pretty much every Supreme Court decision that impacts on our rights relative to tech search and seizure suspect, and they need to be reviewed, reconsidered and, when appropriate, rejected. It’s got to start somewhere, even if the opinion includes funky punctuation.  Better to be called out for italics than slavish adherence to moribund rubrics.