Making sausage is messy.  Making law, if one follows the orderly process, shouldn’t be.  But then, judges would be required to squint their eyes really hard and pretend that nothing they did had any impact on the real world to ignore the consequences of their actions and go along for the ride.  Magistrate Judge James Orenstein in the Eastern District of New York isn’t going down without a fight.

Via Volokh, Orin Kerr notes that Mag. Orenstein is a naughty boy.  Again.

Back in August, I had a long post, Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement, about a recent Fourth Amendment decision by Magistrate Judge James Orenstein. I wasn’t subtle in expressing my view that it was wrong: I called Magistrate Judge Orenstein’s decision ” an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors.” …District Judge Roslynn Mauskopf had reversed the decision.

Prior to being appointed to the District Court by President George W. Bush, Judge Mauskopf was a prosecutor, rising to United States Attorney for the Eastern District of New York, a position she held for five years before being appointed judge.  This by no means suggests that she’s unfair, but you ought to know.   Mag. Orenstein was also a prosecutor for most of his career as well.

After being benchslapped, Mag. Orenstein was presented with an almost identical case, sent from another judge.

Despite the order reversing his earlier order and granting the government’s application, Judge Orenstein decided to stick to his guns and deny the application on the ground that he was right before and the District Court was wrong.

Perhaps not surprisingly, my take on Mag. Orenstein’s initial decision was a bit more favorable than Orin’s.  I was  a fan of the Warshak decision, if not fully supportive of its rationale, and still harbor this wild notion that Congress doesn’t get to pass laws enabling warrantless access to anything technologically analogous to the Pony Express to avoid Fourth Amendment scrutiny.  But that’s just me.

The issue here is whether a magistrate judge, after having been “reversed” by a district court judge, can stick to his guns.  We’ve recently discussed the question of slavish adherence to precedent, which would compel a judge to issue an order that he concluded was unlawful. 

For those who believe that the orderly development of the law, by adherence to such precedent despite a sufficient belief that it’s wrong to endure the likely reversal, is put at risk, and that judges should adhere to precedent no matter what until a higher court reverses, Mag. Orenstein’s decision is “anarchy.”

But then, the relationship between a magistrate judge and the district court is somewhat different.  While Judge Mauskopf had the authority to “reverse” Mag. Orenstein’s decision, it was neither really a reversal nor a decision.  The case “belonged” to Judge Mauskopf, and she referred it to the magistrate for hearing and determination.  He then reported back to the judge from whence the case came, and she, as the assigned Article III judge, was responsible for approving or disapproving the magistrate’s recommendation.  It was nothing more than his recommendation, subject to the assigned judge’s approval.  She didn’t approve.

In the decision, Mag. Orenstein recognizes that Judge Mauskopf wasn’t enthralled with his ruling and addresses it:

Nevertheless, for reasons I have explained elsewhere under similar circumstances, Judge Mauskopf’s decision is not controlling authority, particularly where, as here, she is not the district judge currently on miscellaneous duty, to whom any review of this order will be assigned under this court’s rules. Moreover, deferring to the decision of a single district judge on a matter normally litigated before a magistrate judge on an ex parte basis-and thus not subject to further review where the government’s challenge to the magistrate judge’s adverse decision is successful-would needlessly “freeze the development of the law in [this] district, and possibly in [this] circuit, in a way that would not be possible with respect to motions normally made in the first instance to a district judge.”

He additionally notes support out of the Third Circuit and elsewhere, that bolsters his position.  The question remains, however, whether a magistrate judge is “empowered” to hold to his decision in the face of disapproval of a district court judge, even if on a different case.  More importantly, from the orderliness perspective, is whether this would “freeze the development of the law.”

The “freezing” point goes very much to the argument in favor of a judge taking the risk of ignoring precedent and issuing a principled ruling.  Evolution of the law begins at the bottom, where a judge hitches up his pants and does what he’s got to do.  Only then does the issue present itself, properly formed and fleshed, for consideration above.  It would be easy, and safe, to just cite to the precedent and shrug.  Even noting that, but for precedent, the decision would be otherwise fails to tee up an issue adequately except in the rarest of instances. 

Judges will disagree.  Judges should disagree, if agreement violates the principles they believe correct.  And judges may well find that those with the authority to give them a good smack will disagree with them.  It’s the rationale, the argument in favor or against a particular interpretation of law or the application of the Constitution, that generates change.  Even then, it’s awfully hard to come by, but without it, it’s impossible.

Not only do I happen to agree with Magistrate Judge Orenstein’s decision, which likely doesn’t count for anything, but I applaud his willingness to stand firm in his belief that the Constitution, the document to which he swore fealty, demands that decision.  I admire his willingness to face reversal, to look squarely at the possibility that a higher court will say mean things about his intellect and motives, because he believes that the Constitution, and more particularly the Fourth Amendment thereto, demands that the warrant clause be enforced, even if Congress forgot about it.

If nothing else, Mag. Orenstein’s decisions give rise to decisions by district judges that compel their consideration of the constitutional issue, whether to accept or reject his interpretation.  If he was to accept Judge Mauskopf”s spanking and run away with his tail between his legs, it would produce a more orderly decision-making process, and one more likely to be wrong.