Chief Judge of the General District Court in Loudoun, Virginia, Dean S. Worcester, took a stand and raised a ruckus. From the Washington Post :
In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.
The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren’t told that a criminal conviction could lead to their deportation.
Hooray! We love it when a judge shows the guts of his convictions and stares down bad precedent, refusing to become a slave to law he knows to be wrong. Woo hoo!!!
But wait a sec. We think this decision is wonderful because we favor the outcome, that defendants who were not informed of the collateral immigration consequences of a conviction should be allowed to make a fully informed decision. We applaud Judge Worcester’s refusal to adhere to precedent because we don’t like the precedent. It’s wrong, we say. Wrong, wrong, wrong.
But wrong precedent is a two way street. What if the Virginia Supreme Court had nailed it, held that defendants whose pleas were less than knowing, voluntary and intelligent, and some trial court judge decided that he didn’t care for the precedent and denied their writ? Bad judge? Sure, but is it only because of whose ox is gored?
Orin Kerr took up this fight over at Volokh Conspiracy. Not surprisingly, many of his commenters/detractors immediately took the leap of faith toward Judge Clyde Roger Vinson’s decision holding President Obama’s healthcare reforms unconstitutional. Others asked less politically charged questions, but made the same point, what’s a judge to do when faced with precedent he believes to be bad law?
Orin answers :
Orin Kerr says:
Dave H asks a hypo:
You are a lower court judge, and your superior court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.
Quibbles with the hypo aside, Orin argues that the only “lawful” options available are comply or quit. Some others offer snarky options, like never decide or find some dubious fact and twist a decision out of it to reach the desired outcome, but these really don’t address the problem.
I can’t agree with Orin’s contention that the choices are limited to slavish adherence to precedent or the bread line. Not that I don’t understand both the law’s reliance on precedent and its underpinnings, and how this reliance can work for or against a position with equal impropriety.
Rather, I don’t view the judge’s function as so ministerial that it’s inherently limited to the rote application of precedent. If that were so, the law would never evolve. There are some who believe it shouldn’t, though I’m unaware of anyone who’s pining for the return of Dred Scott.
This isn’t a matter of judicial activism, per se, as its not in support of judges usurping the legislative function, but rather taking the risk of reversal and ruling as they believe to be the proper interpretation of law despite precedent to the contrary. The worst that can happen is they get reversed, which can happen even when rulings are less than principled.
The problem with Orin’s options, apply precedent or quit, is that it precludes a judge from exercising judgment. Judges are not mere umpires at the ballgame, calling balls and strikes based on a well-delineated zone. Little in the law is quite that clear, and to the extent that judges are constrained to rule in a way that so significantly offends their view of the law, there must be a means of expressing their decision short of resignation. Quitting just isn’t a sufficiently meaningful way to make a point, and is too extreme a message to challenge a particular bit of precedent. There are just too many troubling precedents to quit over all of them.
Indeed, the outcome oriented appellate decisions are no more worthy of principled adherence than outcome oriented lower court decisions. How many appellate decisions are grounded in utterly nonsensical reasoning, defying reality in the trenches or glaringly omitting obvious arguments that would compel a different conclusion? And what about the rationales that cause lawyers everywhere to laugh out loud? We know they’re there, and yet they come from a court entitled to dictate how lower courts rule. What to do?
It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful. It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct. To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.
The upshot is that judges will still adhere to precedent, both because of its force of reason as well as the judge’s lack of such a strong principled disagreement that he essentially begs to be reversed. That said, there must be some outlet for principled disagreement that doesn’t require a judge to quit in disgust or issue an order that he believes manifestly wrong.
Or do we only want judges who are dedicated followers, because if the independent thinkers all quit, that’s all we’ll have left.
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When one of the immigration prosecutors (They call them Assistant Chief Counsels in Immigration Court) saw my quote in the Washington Post about this case he told me I should always be surprised when I win a case. I guess he wanted to burst my bubble.
Anyway, Judge Worcester did what I think was right, and did not let a Constitutionally defecient conviction stand, a route the Virginia Supreme Court felt was perfectly OK.
Mr. Roberts, could You tell me the immgration staus of Your client? Is it work permit , green card legal resident or other? It was never mentioned in the article.
Thank You,
Jeff
The middle ground alternative is for a judge to reluctantly issue a ruling that complies with stare decisis, and persuasively explain why he or she believes that the precedent should be revisited by a higher court.
You say: “It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.”
So in your view, a judge’s “belief” about what the law should be trumps what non-distinguishable case law holds that it is?
You don’t believe this. I know you don’t.
And if you do hold this view, would you laud the moral integrity of a judge (even though you disagree with him) who refuses to suppress an Miranda-violative admission to child rape because the court firmly believes the founders never intended the constitution to work that way? Will you admire the courage of a judge who declines to order a prosecutor to comply with Brady, because the court genuinely concludes that it was wrongly decided?
Welcome to anarchy. You’ve just destroyed your valiant efforts to get trench lawyers appointed to positions of power.
The problem with your middle ground is that it leaves a person in jeopardy, whether in prison or, in this case, deported, while the judge rules against him and feels really badly about it.
As to your examples, you’ve mistaken an issue of law with politics, making them poor examples. That said, your point is one I made up front in the post, that the judge who doesn’t adhere to precedent can go either way, that it’s a two way street. This is a problem with varying from precedent.
As for anarchy, that’s just silly and overwrought. It’s hardly the precipice where judges will ignore precedent entirely and do whatever they please. They will still be reversed for error, and most will adhere to precedent regardless because they do not feel so strongly that adhering to precedent would result in an unlawful order.
He’s an LPR (a green card holder) who was only removable because of his conviction.
No, there is no anarchy here. Nor is it a harbinger of anarchy. The Judge’s opinion lays out what he sees as exceptions to stare decisis and why this case fits those exceptions. This case isn’t just about judge “going rogue” but how he gets to his ruling within the bounds of stare decisis and recognized exceptions to it.
I haven’t confused issues of law and politics. I selected them intentionally to show the important role of stare decisis in limiting the ability of judges to make important decisions based on their political inclinations.
You can bet that lawyer and judges who believe that immigration law cruelly penalizes many non-citizens in a manner grossly disproportionate to their culpability will laud the courage of the Virginia judge, while he will be condemned by those who feel that non-citizens who commit a crime in our country should get their filthy foreign butts kicked out of our fine nation, post-haste.
Political and legal issues are often intertwined, as they are in immigration issues and virtually every other one touching on crime and punishment. Fortunately, with stare decisis, prosecutors and defense attorneys can at least pretend that the outcome of the case won’t be determined by a judge’s personal politics.
PS. The people of Virginia now know why the writs of error coram nobis and vobis are referred to as the truthful writs in California. Because they never lie.
Okay, let me try this with smaller words. What makes judges apply precedent now? Is there a guy with a gun to their heads? Do their homes get blown up if they don’t? The same force that applies now would apply regardless. Some judges makes stupid decisions now and get reversed. Others make political decisions and get reversed. Still others make principled decisions and get reversed. Or not.
We pretend now that the law offers some stability based on precedent, but it doesn’t. At least if the reason behind a variance was principled, it would be better than the others. And if wrong, it can still be reversed. Or not.
“What makes judges apply precedent now?”
Respect for the rule of law, including the importance of stare decisis.
“The same force that applies now would apply regardless.”
Not if judges are permitted, as you suggest, to determine what the law should be, even though a higher court has dictated something contrary.
Really? So how’s that working out for your Brady or suppression lately? It was never really the case, just artfully (or not) dodged by those who didn’t want to let the bad guy go.
The following was held by the Va. Court of Appeals to be an AMBIGOUS assertion of the right to counsel on 2/1/11:
“Chaney [the cop]: You can have a lawyer present if you want one.
Stevens [the Defendant]: I want, that’s what I need. I want to know what’s, you know what I’m saying.
Chaney: You can stop answering at any time.
Stevens: That’s what I want, a lawyer, man.
Chaney: You do want a lawyer.
Stevens: I mean, that’s what I thought they brought me up here for today.
Nicholson [another cop]: Well they gonna appoint you a lawyer. I mean you gonna get a lawyer.
Chaney: The question is do you want a lawyer before you talk to us again or are you willing to talk to us?
Stevens: I mean I’ll listen to ya but you already said if I could stop if I wanted.
Chaney: Stop answering at any time you want to.
Stevens: I’ll listen to what you got to say. If you want—if I say something—if I feel I don’t want to say no more y’all done told me I can stop.
Nicholson: Yes sir.
Chaney: Stop anytime you want.
Nicholson: No problem at all with that.
Chaney: All you got to say is I don’t want to say—I don’t want to talk to you no more. That’s all you gotta say.”
The opinon says that this point Stevens talked and made admissions that he later sought to supress. This conversation took place in a holding cell at the local court (Stevens was brought to court to get assigned to a court appointed attorney, and the officers decided to go see him before that happened). Once in a while it is good to see common sense break out and get a good opinion (like Cabrera), because most of the time we don’t get them.
Yup.