By Mike Dorf
Two unrelated cases currently in the news illustrate the utility--and pitfalls--of dishonesty in adjudication. First consider the ongoing imbroglio over the 2d Cir panel's disqualification of Judge Scheindlin in the stop-and-frisk litigation, about which Prof. Kalhan has blogged here and here, while I have blogged here. In its initial October 31 order, the panel concluded "that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ('A judge should avoid impropriety and the appearance of impropriety in all activities.')." Then, last week, the panel issued a superseding opinion that "clarified" its earlier order as follows: "we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act."
Right. The panel is right that its initial order did not imply that Judge Scheindlin had violated the Code of Conduct; the initial order actually said that. So the clarifying opinion is in fact not a clarification but a reversal--except of course that the panel did not reverse its actual decision disqualifying Judge Scheindlin. This is so obviously dishonest to anyone who reads the order and the "clarifying" opinion that one can only assume that the panel believed that writing a dishonest opinion was better than its alternatives.
What were those alternatives? One would have been for the panel to withdraw its initial order and reinstate Judge Scheindlin. Another would have been for the panel to stick to its guns or double down. I assume that the panel was unwilling to withdraw its initial order due to some combination of pride (i.e., unwillingness to confess error) and result-orientation (i.e., the view that even if Judge Scheindlin didn't commit a technical violation of the ethical rules, she bent the law to get the substantive outcome she wanted and so the panel was justified in bending the disqualification rules to try to get the substantive outcome it thinks is right, given the time constraints imposed by the coming change in mayor). With the option of reversal effectively off the table, a dishonest opinion that aims to reassure the world that Judge Scheindlin is a good and honorable judge was better for the panel than an honest doubling down that might have risked en banc reversal.
Thus, in the stop-and-frisk disqualification satellite litigation, dishonesty served the interests of the Second Circuit panel judges. Whether it served the interests of justice and the broader public is a harder question, but we can find cases where dishonest rulings do appear to serve these wider interests. Consider Establishment Clause litigation.
Under a very straightforward and seemingly obvious reading of the Establishment Clause, all government invocations of the Divine (as opposed to, say, purely historical or cultural references) would be forbidden. An official motto such as "In God We Trust" on the money or the phrase "under God" in the Pledge of Allegiance would be recognized as unconstitutional for the message of exclusion such endorsements send to atheists, agnostics and polytheists. So too, official prayers at the beginning of legislative sessions would be impermissible.
To be sure, there is a principled way to avoid such results. The original Establishment Clause only limited the federal government and was adopted at a time when state and local establishments were common. The standard route to incorporation of most of the provisions of the Bill of Rights is a problematic basis for incorporating the Establishment Clause against the states because anti-Establishment is a structural principle, not a protection for individual rights of the sort protected by the Due Process Clause or the Privileges or Immunities Clause. Accordingly, there is a good originalist argument for saying that the Establishment Clause doesn't apply to state and local governments. But such a holding should be rejected on three grounds: 1) Stare decisis; 2) the originalist argument here relies on the now-mostly-disfavord expectations version of originalism rather than semantic originalism; and 3) it would be crazy and harmful to say that the Establishment Clause imposes no limits on state government, as that would allow such things as clearly sectarian organized prayer in public schools and even permit states to adopt Catholicism or Mormonism or Sunni Islam or whatever as the official state religion to be supported through taxation.
Without a principled means of avoiding the conclusion that the Establishment Clause bars all religious assertions by government, the Court could try to enforce that principle, but it does not do so, and for a good--if not exactly a principled--reason: The Justices understand that the American people would not accept a full-throated interpretation of the Establishment Clause. Thus, to limit backlash, the Court has tried to avoid the implications of the Establishment Clause with a number of hand-waving distinctions.
For instance, various Justices have, at various points, dismissed real or hypothetical challenges to such things as the motto "In God We Trust" as mere "ceremonial Deism"--the fictive idea that invocations of a single God are meant only to solemnify rather than to assert any religious conception of the Divine. To see that this is bunk, imagine that you as a monotheist lived in a country with a clear polytheist majority where the official motto was "Blessed by All the gods" or "Fearful of the Wrath of the gods on Olympus". Would you think that this was mere ceremonial polytheism?
Nonetheless, while ceremonial Deism is bunk, it is useful bunk, because it enables those Justices who invoke it to avoid either having to make dreadful substantive decisions (like saying the Establishment Clause doesn't limit the states) or to make correct principled decisions that will spark backlash among the large segment of the population who believe that there really is a war on Christmas. Indeed, in many parts of the country, the American people do not even accept the watered down version of the Establishment Clause that the Court does acknowledge.
Another mechanism the Court uses to avoid the implications of the Establishment Clause is the "tradition exception," as articulated in Marsh v. Chambers. There the Court rejected an Establishment Clause challenge to official legislative prayer on the grounds that it was part of an ongoing tradition dating to the Founding. This too was bunk, because in other areas longstanding tradition is not necessarily enough to overcome compelling arguments for unconstitutionality. To be sure, longstanding tradition could be relevant to an expectations originalist interpretation, but as noted above, the Court (quite sensibly) does not consistently apply expectations originalism in Establishment Clause jurisprudence or more generally. Nonetheless, the tradition exception was useful in a case like Marsh because it meant that the Court could reject an Establishment Clause challenge without doing more widespread damage to its Establishment Clause jurisprudence. The very dishonesty of the reasoning served to limit it.
The problem is that lies often beget more lies. Steve asks Joan out for a drink; Joan likes Steve but finds him unattractive; to spare his feelings, she says she is too busy with work; Steve then runs into Joan, who is out on a date with Bill; Joan can admit that she wasn't too busy, just too busy for the likes of him, or she can lie some more, perhaps introducing Bill as her cousin who is unexpectedly visiting from out of town.
Likewise with the Court. Having pretended in Marsh that tradition justifies legislative prayer, what does it do now, in Town of Greece v. Galloway, where the Court must answer the question of just how to interpret the scope of the tradition exception? Does it apply to overtly sectarian prayer? If not, who decides whether a prayer is too sectarian and by what standards? Etc. Unless the Court "comes clean" and says that the tradition exception was always a pragmatic compromise, it cannot fashion a principled way of smoothing the boundary between the general doctrine and the unprincipled exception. Accordingly, I expect the Court to resolve the case by saying the jurisprudential equivalent of "it's not you, it's me."