Yesterday I explored three cases that, in my opinion, show Judge Sonia Sotomayor as anything but an "intellectual lightweight." As I replied to comments, and read some of the other diaries on the topic, I thought more about the complaints. I think I've come to understand where the complaint is grounded, though I still disagree with it. But perhaps it's worth exploring further.
And Blogistan Polytechnic Institute's Janitor Professor of Astrology just walked Woofie the Younger did extensive Kossological research to find out why so many of us aren't sleeping well.
More below the fold....
Beneath the "Lightweight" Label
Let me start by saying I value disagreement. I've written often that I learn more from these Morning Feature dialogues than I could ever hope to teach. That's not modesty; it's a fact. It's pretty much certain that for any topic I choose to write about, at least one reader will be someone who teaches or works, or who has taught or worked in that field. And I try to assume that if someone disagrees, they're doing so in good faith and from some basis in experience. It's not always true, but it's true more often than many like to believe.
Of the three cases I discussed yesterday, the one that drew the most response was Doninger v. Niehoff. It's a case Professor Turley has commented on several times, and while Judge Sotomayor didn't write the opinion, she did join it. Professor Turley doesn't like the outcome, nor did many of the commenters. I don't either. Indeed the Second Circuit seemed not to like the outcome, and that may point toward what Professor Turley and some on the left intend in their criticism.
Starting at the conclusion ...
I'll begin by quoting the court's conclusion in full, with only the citations [elided] for clarity:
Avery [Doninger], by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, "the punishment did not fit the crime." [...] We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task of teaching "the shared values of a civilized social order" — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. [...] Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, "[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members," and we are not authorized to intervene absent "violations of specific constitutional guarantees." [...]
The judgment of the district court is therefore affirmed.
In short, the Second Circuit seems to believe the school officials should have handled the situation better. But even though the Second Circuit sympathized with Ms. Doninger, they concluded that the trial court judge had not decided the case unreasonably, and that was the legal standard for reviewing a preliminary injunction decision.
... and working backward.
That may point toward the rationale behind the criticism of Professor Turley and others on the left. It's a kind of reasoning that starts at the conclusion and works backward, and it goes something like this:
- Ms. Doninger is being unjustly punished by the school for something she wrote and published at home. That was free speech and the principal should not have barred her from school elections because of that speech.
- Letting that stand is unjust, and the law should not permit unjust outcomes. Therefore,
- Scour case law, the history of the First Amendment, law review articles, treatises on legal theory, and whatever other sources you need until you can fashion an argument to overturn the unjust outcome.
I think this is what Professor Turley means by "intellectual rigor," and it's a valid approach for a law professor. Law professors often write from a normative perspective: what they think the law should be. It's like planning your vacation by first deciding on a destination, and then working out a route to get there. There's nothing intrinsically wrong with that kind of analysis; we all do it often, in various ways, in our daily lives.
But a preliminary proceeding is not the setting for that kind of analysis.
The "abuse of discretion" standard of review:
A preliminary injunction hearing is necessarily hurried, as one party claims they will suffer irreparable harm if the court does not grant relief immediately, while the case is being developed. The parties have shortened deadlines to file motions and responses, and the court must hear the case quickly. Often the parties don't get to present all of the evidence and arguments they might ultimately develop, and the rules for preliminary injunction proceedings recognize that incompleteness.
The court will only grant such injunctions if the party shows: (1) a likelihood that it will suffer irreparable harm absent the relief; and, where an injunction would alter rather than preserve the status quo, (2) a clear or substantial likelihood that the party will prevail after all of the evidence and arguments are presented in a full hearing.
Similarly and for the same reasons, appeals of preliminary injunction rulings also have shorter deadlines. They're not designed to offer an exhaustive analysis of the case. The appellate court's role is to get the case back to the trial court, to proceed with a full hearing on the merits. Based on long precedent in the Second Circuit, the standard for appellate review of preliminary injunction rulings is "abuse of discretion."
That means appellate court will defer to the trial court unless the decision is "unreasonable." Put another way, if reasonable judges could reasonably disagree on whether to grant or deny a preliminary injunction, the appellate court will defer to the trial court judge's decision and send the case back for the formal injunction hearing. The appellate court can then review all of the issues in detail once the trial court is done.
Under that standard, it's not enough that an appellate judge could fashion a legal argument for overturning the trial court denial of the preliminary injunction. Rather, the appellate court must find there is no reasonable basis in fact and law for the trial court's decision. If the decision is reasonable in light of the facts and the current law, the appellate court must defer to the trial court and let the case move on to a full, formal hearing.
Professor Turley did not like the outcome in Doninger. I don't like it either. Neither did the Second Circuit. But this was an appeal of a preliminary proceeding, where the standard of review takes account of the hurried nature of such proceedings: unless the trial court was clearly unreasonable, its decision stands. Even if the appellate judge disagrees. Even if that appellate judge might argue to change the law, once the case has been heard in full.
Professor Turley's legal analysis doesn't require a deadline. But an appellate court reviewing a preliminary proceeding does. Neither of them is wrong. They have different jobs.
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Speaking of jobs, the Janitor Professor of Astrology may be down to a single job if he can't figure out why the stars are giving us sleepless nights....
Gemini - That dream where you went there and did that and then ... wow? Details, please.
Cancer - Yours is a personal sign, so you're neither universal nor social. Misfit.
Leo - You didn't oversleep. The alarm clock was set for PM so you're almost 11 hours early.
Virgo - The point of counting sheep is to get sleepy, not to arrange them in neat rows.
Libra - Yours is a social sign, so you go with the crowd. Pushover.
Scorpio - A Gemini dreamt of you last night. Wash the lipstick off the pillow case.
Sagittarius - Your dreams will come true. Once you can get to sleep and have some.
Capricorn - Yours is a universal sign, so you're in touch with everyone. Hands off.
Aquarius - Your dream about a Scorpio with a Gemini is voyeurism. But still ... wow.
Pisces - Get through today with one eye open. Tomorrow use the other eye.
Aries - That uncomfortable lump in the bed won't go away until you feed it.
Taurus - Morning isn't an evil conspiracy against you. They're not all evil.
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Happy Friday