Where Legal Reasoning Matters

Longtime readers will know that I have my own disagreements with the solipsistic assumption of some members of the legal academy that the quality of the legal craftsmanship of judicial opinions is more important than outcomes, and I think the evidence is unambiguous that public perception of Supreme Court opinions is based on outcomes, not the quality of the reasoning. I agree with the late, great Robert Cover that it wouldn’t have made any difference in the long run if the Court had said nothing more in Brown than “let’s end apartheid now” (and, of course, the fact that Brown has become the most sacrosanct landmark of 20th century law despite the fact that it is far from a masterpiece of legal reasoning is a case in point.)

Despite this, having read the opinion carefully I have to say that I side with Publius over Glenn on this one; while I strongly believe that the outcome of the case (at least insofar as the conclusions that the NSA program violates FISA and the 4th Amendment are concerned) was correct, the shoddiness of this opinion really does matter. First of all , this goes beyond mere inarftfulness; Publius is right that it’s ridiculous to claim that there is no dispute over the First and Fourth Amendment claims being made here (indeed, I don’t even agree with the former claim.) And second, if this was the Supreme Court the argument would be merely normative. But since it’s a District Court, the quality of the legal reasoning matters in a pragmatic way as well: this decision is certain to be overturned by 6CA. For lower courts, the quality of the legal reasoning most certainly does matter, and even a court sympathetic to the outcome will have no choice but to overturn this one. The NSA program is unconstitutional–but this argument needs to be made in an opinion that has some chance of holding up on appeal.

UPDATE: In comments, Ann Bartow makes some interesting points that compel me to emphasize what I’m arguing and what I’m not. I should say that 1)I agree that there is clearly some measure of racism and sexism involved in the criticisms made by people who don’t have any knowledge in the field and focused on her individual characteristics without having read the opinion, 2)I don’t have any problem with the “overheated rhetoric” per se, and criticism about it is laughably disingenuous coming from people who revere Antonin Scalia, and 3)I also agree that most of the same people would be attacking the opinion in the same way even if Oliver Wendell Holmes came back to earth and inhabited Diggs Taylor’s body. Nonetheless, sometimes there is a wolf. Even if we assume that a summary judgment was defensible with respect to the violation of FISA–and given Hamdan, the administration’s argument is unserious–I just can’t agree that the First and Fourth Amendment arguments are so unambiguous as to make a decision before during pleadings appropriate. And in addition to being legally erroneous, I think that the overreaching makes even her good arguments look bad. The fact that she’s being attacked for some bad reasons doesn’t make the opinion good, and while I don’t care that it doesn’t please Fred Hiatt the fact that it will inevitably be reversed really does matter.

…In comments, Bartow and Greenwald argue that issuing a summary judgment is a case such as this is not unusual. If that’s the case, then I agree that the other deficiencies in the opinion are trivial in the long run.

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