Style Versus Substance Redux

Laurence Tribe guest-posts at Balkinization about the ongoing style versus substance debate that's been going on since Judge Anna Diggs Taylor struck down Pres. Bush's warrantless surveillance program last Thursday. Tribe's post is an edited version of an e-mail he sent to Adam Liptak, in response to Liptak's NYT piece, which emphasized Judge Taylor's flawed legal reasoning.

Liptak's major point is that even legal experts who applaud the decision itself are unenthusiastic about the arguments Taylor used to reach her decision:

The main problems, scholars sympathetic to the decision's bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.

Tribe's response is that these criticisms are easy to make, but not entirely fair, and ultimately irrelevant: Thursday's ruling will very likely be affirmed on appeal because it was the correct ruling, and the law supports it. Tribe argues that it's self-indulgent and shortsighted for legal experts to focus on the well-chosen word and the elegant argument when we're dealing with an administration that claims the right to flout the law at will:

It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.

Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FISA Court of Review. But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But it's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Even at the level of legal analysis, it's a bit much to treat Judge Taylor as though she idiotically and gratuitously injected the Constitution into her argument when all she needed to do was rely on the FISA. Even the FISA, after all, is subject to constitutional restictions to the degree that a particular presidential maneuver that it purports to forbid is arguably immune under Article II from the particular exercise of Article I power on which the FISA prohibition rests. And although Judge Taylor's opinion doesn't do a good job of explaining just why the administration was wrong in arguing that FISA would be unconstitutional to the degree it has the effect claimed by the critics of the NSA program, it remains the case that no explanation of that conclusion would be possible without undertaking a constitutional rather than entirely statutory dissection of the relevant materials.

Moreover, it seems to me misguided to say that Judge Taylor's reliance on the chilling effects of the government's eavesdropping program represents poor legal argument simply because it isn't deeply rooted in settled precedent or entails what Jack Balkin described as a "rather innovative" line of argument. Before many of us grew accustomed to the Rehnquist Court's unfortunately dismissive reaction to "chilling effect" arguments of the sort that were routine in Justice Brennan's day and that came to seem adventuresome only in an era that could take decisions like Laird v. Tatum more or less for granted, the argument that struck Judge Taylor as compelling would have been regarded as altogether routine.

Finally, it's something of a cheap shot to chide Judge Taylor for her failure to exploit Justice Stevens' more than mild hint, in his Hamdan v. Rumsfeld opinion, that the administration's reading of the AUMF was too sweeping by a country mile. Of course Hamdan offered a major crutch that Judge Taylor failed to grab. But, by all accounts, she is no fool. My immediate assumption -- an assumption that explains why I praised her opinion and not just her result in my remarks to Charlie Savage of the Boston Globe the other day -- was that Judge Taylor was being rather clever in her seemingly deliberate and rather daring decision to reject the administration's far-fetched construction of the AUMF without relying on the Supreme Court's June 2006 pronouncement on the subject.

Glenn Greenwald, of course, has been saying this from the start, and has taken a lot of heat for it. Yesterday, he posted a rebuttal to his critics that I personally found very helpful in clarifying the issues involved in Judge Taylor's decision:

(1) There is a fundamental difference between (a) a judicial ruling which reaches the correct legal conclusions but explains and/or analyzes the issues poorly, and (b) a judicial decision which reaches the wrong legal conclusions by using poor legal reasoning, but nonetheless produces desirable political or practical results. The decision from Judge Taylor is in category (a), not category (b), and nobody (at least that I have heard) is arguing that the decision should be celebrated despite its having reached the wrong legal conclusions.

(2) Nobody is arguing that it is "irrelevant" whether a court does a good job analyzing the issues before it or in explaining its decision. It is always preferable for a judge to do a good job in that regard, and a better opinion with regard to several issues would have been preferable here. The point is that, in the scheme of things, the quality of the judge's opinion is entirely inconsequential both in terms of the ultimate outcome of this case (which will be decided by a higher court) and in terms of the systematic law-breaking powers this administration has seized.

(3) What I argued yesterday -- that the correctness of the court's legal conclusions matters much more than the quality of the opinion -- is not some exotic theory I invented in order to criticize the Post editorial or defend Judge Taylor's opinion. To the contrary, that is the core principle on which appellate review in our country is premised.

Appellate courts cannot and do not reverse judicial decisions because the opinion was written poorly or because the reasoning was unconvincing. If the Sixth Circuit ends up thinking that this was the worst and most erroneous written opinion ever, but nonetheless agrees with the conclusions the Judge reached but for completely different reasons (on standing, the Fourth Amendment, FISA, etc.), the District Court's decision will be affirmed, not reversed. A bad or poorly reasoned opinion is not grounds for reversal. Only a wrong conclusion constitutes such a ground.

That makes sense to me.

Glenn further explains his position in the Comments section at Volokh Conspiracy. In particular, an exchange between Glenn and Orin Kerr reminded me of something I had forgotten: that Alberto Gonzales himself clearly acknowledged FISA's standing to authorize electronic surveillance:

Alberto Gonzales has admitted as clearly as anything can be admitted that the eavesdropping activities in which they are engaged are within the scope of FISA. Here is what he said at his December 19, 2005 Press Briefing:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

The two lawyers, three opinions rule being what it is, though, there is still disagreement over whether the reasoning matters and whether it will affect the outcome of the case on appeal.

Cass Sunstein, a law professor at the University of Chicago, believes the appeals court will reject Judge Taylor's reasoning but uphold the decision.

Scott Lemieux (and Publius, linked from LG&M), disagree:

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 inartfulness; 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.

The afore-mentioned Publius calls the ruling "a legal atrocity":

You know, I really hate to be this harsh, particularly given that the Malkin/Limbaugh hyenas are going to attack the judge. But this is not how you do this. I think the NSA program is illegal too, and my sympathies for the administration are fairly well known. But this sort of opinion plays right into the hands of conservative critics who say liberal judges play politics. I don't think "liberal judges" do, but this one did.

This is pure naked politics dressed up as law. It is an insult to the legal system. And the Sixth Circuit is going to squash it like a bug.

We shall see.