This is the second in a series of a series of posts in which I, and the far-more comptent Kyle Graham will hand out a series of year-end awards. Kyle’s first post for “Law Professor of the Year” is here.
On my last trip to the Bay Area, against my better judgment. I let Kyle Graham pay for my lunch at a delicious Persian restaurant. I knew that was a mistake. Indeed there is no such thing as a free lunch, especially when you’re a blogger. So now I owe Kyle the blogosphere-equivalent of a plate of speared meat and rice. Hopefully my first post in this volley will at least cover the complimentary pita bread.
I generally agree with Kyle’s ranking of law profs of the year: Randy Barnet (second runner-up), Brian Tamanaha (first runner-up), and Senator-elect Elizabeth Warren (winner!). Though, for next year, I would add a few categories to the ranking for blogging lawprofs. Randy Barnett and Orin Kerr would be a lock for the Hatfield-McCoy award for best on-screen chemistry. Brian Leiter would be a solid bet for “most effective blog posts in 5 words or less.” Sandy Levinson will receive the “Constitution Schmonstitution” Lifetime Achievement Award. Finally, Jack Balkin will win the award for “best prop design in a blog post” for his planned “One Trillion Dollar Platinum Coin” (though that award may be a bit off the wall).
Now, onto important matters. Another year-end countdown.
I wish to take on a topic near and dear to many of our hearts. The benchslap. A term first coined by David Lat back in 2004 (as recognized in this New Yorker piece in 2005), the benchslap refers to a “harsh insult delivered by a judge, generally to counsel or another judge or a litigant.” This word is so legit that Bryan Garner is considering adding it to Black’s Law Dictionary.
This post will consider the best benchslaps of 2012 (and a few from 2011).
Here are the categories, many inspired by David’s fastidious blogging of benchslappery:
1. Horizontal Bench Slap
The horizontal benchslap refers to a judicial remark that smacks down a fellow judge on the same court.
Winner: Chief Judge Edith Jones, telling Judge Dennis to shut up
During oral argument, Judge Jones of the 5th Circuit Court of Appeals told her colleague, Judge Dennis to “shut up” because he was “monopoliz[ing] the questions.” Jones even asked if Dennis would like to leave the room. David Lat labelled Jones a “judicial diva gone wild.” Hell, 81% of Above The Law voters though Jones crossed the lines. When you exceed the bounds of decency of ATL commenters, you know you’ve gone too far!
Here is the transcript, and audio:
CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.
CHIEF JUDGE JONES: Would you like to leave?
JUDGE DENNIS: Pardon? What did you say?
CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….
JUDGE DENNIS: Don’t tell me to shut up….
Though, Dennis accepted her apology, this brutal encounter is the top horizontal bench slap.
2. Vertical Bench Slap
The vertical bench slap refers to a judicial remark that smacks down a judge on a lower court.
Winner: 2nd Circuit Panel, Per Curiam, Bench Slapping Judge Jed Rakoff
Judge Rakoff famously, and quite unexpectedly rejected a settlement between the SEC and Citigroup. Promptly, the 2nd Circuit reversed Rakoff, granted a stay, and bench slapped him in the process.
It is commonplace for settlements to include no binding admission of liability. A settlement is by definition a compromise. We know of no precedent that supports the proposition that a settlement will not be found to be fair, adequate, reasonable, or in the public interest unless liability has been conceded or proved and is embodied in the judgment. We doubt whether it lies within a court’s proper discretion to reject a settlement on the basis that liability has not been conclusively determined.
Having considered the various explanations given by the district court for its refusal to permit the settlement, we conclude that the S.E.C. and Citigroup have a strong likelihood of success in their joint effort to overturn the district court’s ruling.
Honorable Mention: Chief Judge Edith Jones, emailing Judge Sparks
Though Judge Jones couldn’t repeat as a winner, her email to Judge Sparks chastising him for his “cute” orders–that were “caustic, demeaning, and gratuitous” and “cast more disrespect on the judiciary”–was an ex parte vertical bench slap.
Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel.
3. GVRtical Benchslap
The most severe of all vertical benchslaps is when SCOTUS calls out a court of appeals by name in a Grant-Vacate-Remand (GVR in the lingo) per curiam order. This is the dreaded GVRtical bench slap (pronounced Go Vertical).
Winner: United States Supreme Court, Per Curiam, Benchslapping 6th Circuit for “plain and repetitive error”
In Parker v. Matthews, the Supreme Court GVRd, quite brutally the 6th Circuit. What makes this benchslap so harsh is that the Court calls out the 6th Circuit by name over, and over, and over again for making the same mistake over and over again.
As we explained in correcting an identical error by the Sixth Circuit two Terms ago, see Renico, 559 U. S., at ___ (slip op., at 11–12), circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court,” 28 U. S. C. §2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth Circuit’s reliance on its own precedents be defended in this case on the ground that they merely reflect what has been “clearly established” by our cases. The highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the elaborate, multistep test employed by the Sixth Circuit here. To make matters worse, the Sixth Circuit decided Gall II under pre-AEDPA law, see 231 F. 3d, at 283, n. 2, so that case did not even purport to reflect clearly established law as set out in this Court’s holdings. It was plain and repetitive error for the Sixth Circuit to rely on its own precedents in granting Matthews habeas relief.
The 6th Circuit isn’t the new 9th for nothing.
(I clerked for the 6th Circuit last year, but had no involvement in this case).
4. Reverse Benchslap
The reverse benchslap (as coined by David Lat) refers to “a lower-court judge dissing a judge on a higher tribunal.”
Winner: Judge Jeffrey White, reaching around for the reverse bench slap of Chief Judge Kozinski
Judge Kozinski is often the one administering the benchslappers. But in Golinski v. OPM, Koz was the one getting slapped.
At the administrative appeal from the denial of benefits, Chief Judge Kozinski found that the FEHB statute confers on the OPM [Office of Personnel Management] the discretion to extend health benefits to same-sex couples by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility…. The Court finds this reasoning unpersuasive.
It’s not often that you see a reverse benchslap, i.e., a lower-court judge dissing a judge on a higher tribunal. As Judge Mark Holmes — a former Kozinski clerk, by the way — recently observed, “[o]f all the routines in judicial gymnastics, few have a higher degree of difficulty than the reverse benchslap.”
Executed with precision.
5. Best Flying Benchslap
Yet, the benchslap is not only used to smack down other judges. Frequently, it is used to smack down litigants who mess up. In such cases, the Judge flies off the bench to deliver a personal slap to the litigant. This is the flying benchslap.
Winner: Judge Richard Posner
Judge Posner, a friend of this blog, compared an attorney to an ostrich, for sticking his head in the sand.
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. . . .
There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided
the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unpro- fessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).
Judge Posner was slapped back for this slap, by the ostrich-attorney (he filed a grievance–“If the judge can bully plaintiffs’ lawyers, he’s going to do that to protect American corporations,”) and the creator of the photograph Posner (“I would have a thought a judge of all people would be decent enough to ask permission before using an image”).
Judge Posner returns to the awards shortly.
6. General Benchslap
Perhaps the least general of all benchslaps are general benchslaps, where a Justice smacks down the Solicitor General.
Winner: Chief Justice Roberts, for repeatedly berating Solicitor General for changing positions
In the Solicitor General’s office, there is a running joke that “ the phrase “upon further reflection” used in briefs to indicate a change should actually be, “upon further election.” Chief Justice Roberts is not laughing.
During oral argument in US Airways, Inc. v. McCutchen (11-1285), Roberts pounced on the Deputy Solicitor General for the administration changing its position.
CHIEF JUSTICE ROBERTS: Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view — that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?
MR. PALMORE: We do have a new secretary under a new administration. But that -
CHIEF JUSTICE ROBERTS: It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change. We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.
Robert sustained the bench slap in Decker v. Northwest Environmental Defense Center (11-338), criticizing the government for changing its policy at the 11th hour.
Honorable Mention: Justice Antonin Scalia, Benchslapping Solicitor General in Kiobel v. Royal Dutch Petroleum.
Not to be outdone by the Chief, Nino got the term off to a great start by asking point blank why the Court should listen to the Obama Administration’s position that contradicts with the position of previous Administrations.
JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?
GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.
JUSTICE SCALIA: Oh, okay.
The SG may need to get a drink of water after that one.
7. Inter-Article Benchslap
When the benchslap is so hard, it stings from Article III to Article II to Article I.
The Winner: Judge Jerry Smith, for ordering Attorney General Holder to submit a letter certifying that the courts retain the power of judicial review.
We return to the 5th Circuit for another winner. Instead of just leaping over the bench for this slap, Judge Jerry Smith reached across to a separate power to smack Attorney General Holder, and by proxy, President Obama.
As reported first by Jan Crawford (who also broke the SCOTUS Leak story), here is how it went down:
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
Brutal. Jan Crawford reported that the other two judges on the panel remained silent.
Eric Holder shot back with the rare AG-reverse-benchslap:
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.
Right back at ya J. Smith.
As a footnote to this dustup, in August, the 5th Circuit, following the Supreme Court’s opinion in NFIB v. Sebelius, issued an opinion in Physician Hospitals of America, et al. v. Sebelius, acknowledging that it in fact has the power of judicial review. Interestingly, the phrase “judicial review” appears 13 times in Judge Southwick’s opinion. Rubbing it in, maybe?
This ordeal will certainly go down in the annals of benchslappery.
Honorable Mention: Justice Antonin Scalia, Bencshlapping President Obama in his dissent in Arizona v. United States
Citing remarks made by the President ten days before the opinion was released, Justice Scalia reached down Pennsylvania Avenue right to the White House for this inter-branch slap:
The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc ing applications of the Immigration Act that the President declines to enforce boggles the mind.
Stay healthy Justice Scalia. Four more years.
8. Lifetime Achievement Award for Benchslappery
Winners: Justice Antonin Scalia and Judge Richard Posner
This coveted prize will be jointly awarded to Justice Antonin Scalia and Judge Richard Posner for their never-ending feud.
Judge Posner wrote a scathing review of Scalia’s new book with Garner. Scalia was none too pleased and fired back comments at Posner. And Posner returned fire. And Scalia returned. Etc. (See Rounds V, VI, VII, VIII, IX, X, XI, XII, XIII, and XIV).
Though, Scalia may have gotten the last laugh, as Posner recently held in Moore v. Madigan, that Illinois’s ban on granting concealed carry permits was unconstitutional. Paradoxically, Posner’s opinion was driven largely by an opinion he vehemently disagrees with, authored by a Justice he does not respect, based on a history he emphatically rejects, and guided by policy reasons that are not economically sound.
In Posner’s opinion, we saw a rare breed of the “passive agressive benchslap,” where Posner begrudgingly followed a precedent he knew was wrong.
Similar evidence against the existence of an eighteenthcentury right to have weapons in the home for purposes of self-defense rather than just militia duty had of course been presented to the Supreme Court in the Heller case. . . . The Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do
Posner has written about this view of history at some length, but was bound by precedent. But, stare decisis. What can you do.
Honorable Mention: Judge Alex Kozinski
Koz has more bench slaps than we can count. And this countdown would have been woefully incomplete without him.
OK Kyle. Your move.