Peter Friedman, guest-blogging at Is That Legal?, writes (quoting and criticizing me):
I'm sick of reading criticisms of Judge Taylor's decision enjoining the NSA electronic intercept program
as poorly written and reasoned: "What we can judge is the end product,
and in this case, the end product is not very good." The problem is
that the writing and the reasoning is not the end product--the decision
(the order itself as a judicial act), as any lawyer understands, is.
I have to confess that I'm a bit puzzled by this. While it's certainly true that, as a matter of authority -- in the sense of how the litigants have to respond -- the decision is what matters, I think that judging is quite like math. How you get there is just as, if not more, important than what you come up with.
Suppose that instead of the actual opinion that she produced, Judge Taylor had simply announced her decision as follows:
The plaintiffs have standing to challenge the NSA wiretapping program, the state secrets doctrine does not bar this Court from reaching the merits of the wiretapping program (but it does bar the Court from deciding the data mining program), and the President lacks legal authority to engage in warrantless domestic electronic surveillance.
Would that really be an acceptable opinion because it happened to reach what many people think is the correct result?
I'll grant that at a certain level, academic fascination with the beauty and brilliance of opinions can get carried away. Herbert Wechsler, one of the greatest con law/fed courts professors of all time, apparently agonized over how Brown v. Board of Education could be defended, not in terms of its result, which he thought obviously correct, but its reasoning. At some level, I think you have to agree with those who think it doesn't matter (too much) how you justify Brown; it has to be right.
That said, I don't think that Judge Taylor's decision falls into that camp. How you get there does matter, and it should matter, even if she got to the right place.
UPDATE: Ann Althouse's NYT op-ed provides even more reason to value reasoning, rather than just results:
If the words of the written opinion reveal that the judge did not
follow the discipline of the judicial process, what sense does it make
to take the judge’s word about what the law means over the word of the
president? If the judge’s own writing does not support a belief that
the rule of law has substance and depth, that law is something apart
from political will, the significance of saying the president has gone
beyond the limits of the law evaporates.
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