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January 5, 2016

John Gleeson, a member of my Sentencing Judges Hall of Fame, joins notable "teammates" in stepping down from federal bench

In a (personal favorite) post of mine here more than a decade ago, I mused about creating a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. In that post, I noted that the first inductee of my Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms. I thereafter went on to praise the more recent sentencing work of US District Judges Nancy Gertner and Paul Cassell, suggesting their post-Blakely sentencing opinions earn them a spot in the SJ Hall of Fame.

I bring up that long ago post in part because Nancy Gertner and Paul Cassell, in addition to having both done extraordinary sentencing work as federal district judges, both made the (fairly unusual) decision in recent years to step down from the federal bench and return to private practice. And now, as reported in this New York Daily News article, US District Judge John Gleeson — another extraordinary judge who has done extraordinary sentencing work in recent years — has told his judicial colleagues that he is soon to be stepping down from bench. Here are the basics:

Brooklyn Federal Judge John Gleeson, the former prosecutor who nailed the late Gambino boss John Gotti on racketeering and murder charges — shattering his “Teflon Don” reputation — is stepping down from the bench to practice law, the Daily News has learned. Gleeson, 62, made the announcement to his fellow judges on Monday, sources said. He said the decision was made in the best interests of his family — Gleeson is married and has two college-age daughters.

Gleeson was next in line to become the chief judge for the Eastern District of New York when Judge Carol Amon’s term as chief expires. With Gleeson out of the picture, Judge Dora Irizarry is expected to be the next chief judge, sources said.

“He’s worked in government service practically his entire life,” a source told The News. “If he wants to earn money while he’s still young, there’s nothing wrong with that.” Federal judges make about $200,000 a year, and Gleeson is expected to make in the seven figures in private practice.

It is rare, but not unheard of, for a federal judge with lifetime tenure to return to private practice. John Martin gave up his judicial robe in the Southern District of New York in 2003 to join a law firm....

President Clinton rewarded Gleeson [for his work as a federal prosecutor] in 1994 by appointing him to the bench....

In recent years, Gleeson was somewhat of a maverick on the bench, advocating against draconian sentences that took away a judge’s discretion. Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago.

Here are links to a few prior posts reporting on just a few of Judge Gleeson's prior opinions that earned him a plac in the SJ Hall of Fame:

January 5, 2016 at 10:00 AM | Permalink


I imagine he will drink a lot of tea in his new activities.

Posted by: Daniel | Jan 5, 2016 11:39:41 AM

Hmmm. A judge that doesn't like a lack of judicial discretion. You could knock me over with a feather.

Doug, why do you lionize people like Gleeson? He's clearly lawless--this expungement order is not authorized. Why does Gleeson feel that his sense of justice is any better than that of Congress?

Judges blowing off the law is a terrible thing. Do we really want federal judges doing that? What does it say of the rule of law?

Posted by: federalist | Jan 5, 2016 12:11:19 PM

Do you think that if there were no prosecutorial discretion there would be no plea agreements? Just a question.

Posted by: beth | Jan 5, 2016 1:40:02 PM

Federalist, explain to me your definition of "clearly lawless"? Would you call the judge who sentenced the Hammonds to below the federal mandatory minimums "clearly lawless"? How about judges who did (or did not) follow the proposed reduced drug guidelines during the 6-month period in 2014 when the US Sentencing Commission had passed them but Congress still could have rejected them and they were not yet officially the law?

In due course, the Second Circuit will tell us if what Glesson did on expungement was "clearly lawless." And if he is so clearly a lawless judge, when hasn't this Congress considered an impeachment investigation, which seem to be the proper way to deal with a judge who is truly lawless."

As my reply is meant to suggest, I do not agree with your description of Gleeson as "clearly lawless," and I am not sure I can think of any judge (left or right, D or R) for which this description seems fitting.

I would readily describe Judge Glesson (and former Judges Cassell and Gertner) and all of our current SCOTUS Justices as "activist" jurists because they are very "active" in applying their understanding of the law (and explaining their understanding) in a variety of diverse and challenging settings. But, as I hope you realize, federalist, I tend to lionize all more active jurists because I think they are actually doing their jobs more appropriately than more passive jurists.

Posted by: Doug B. | Jan 5, 2016 2:48:33 PM

I'm a little uncomfortable with the line that Pres. Clinton "rewarded" Judge Gleeson for his work as an AUSA by making him a judge. Weird.

Posted by: Don't Ask | Jan 5, 2016 4:13:05 PM

"Would you call the judge who sentenced the Hammonds to below the federal mandatory minimums 'clearly lawless'?"

It is well established that Congress has the authority to limit judicial sentencing discretion by imposing mandatory minimum sentences. If a defendant is convicted of violating a statute that carries a mandatory minimum, then the law requires the judge to impose the mandatory minimum sentence unless there is a 3553(e) motion or the safety valve applies. The judge doesn't have to like it. But, the judge has to do it. That's the law.

Posted by: Zachary | Jan 5, 2016 4:32:43 PM

@Doug B.

Apparently my joke flew right over your head but there is a glaring typo in your headline.

Posted by: Daniel | Jan 5, 2016 5:44:14 PM

"I tend to lionize all more active jurists because I think they are actually doing their jobs more appropriately than more passive jurists."

He is more a fan of the active as to passive voice.

"Activism" is a flexible term. Perhaps, we want inert judges. Anyway, Paul Cassell was one of the two guests on the CSPAN "Landmark Cases" episode on Miranda. (They also had a segment on Mapp.) http://landmarkcases.c-span.org/Case/11/Miranda-V-Arizona

Posted by: Joe | Jan 5, 2016 7:34:21 PM

Doug, I think Judge Merritt is a good candidate for being lawless. Or how about all those federal judges who grant stays of execution without going through the standards for granting a stay? Or Judge Reinhardt: "At best, the Court of Appeals’ characterization of counsel’s efforts to persuade the parents to testify is misleading." Mirzayance v. Knowles. Or this one from Judge Reinhardt: "On remand from this Court, the Court of Appeals--addressing Belmontes' ineffective assistance claim for the first time--changed its view of this evidence." Wong v. Belmontes.

This is lawless stuff. And this is what I can remember off the top of my head.

I'll add Sotomayor's nonsense regarding Buck v. Thaler as well.

Posted by: federalist | Jan 5, 2016 7:50:56 PM

I seem to remember a post from federalist awhile back urging judges to ignore some ruling he,federalist, didn't agree with. It didn't seem then that federalist much valued the rule of law.

Posted by: lawyer | Jan 6, 2016 8:39:00 AM

Actually, lawyer, my post was more about what society (or actors within society) can do. Lawless rulings can, and should, in the right circumstances be defied. For example, were I governor (or a prison warden), I would not make it easy for courts to actually perform service of their orders granting stays of execution--then, in the absence of a proper stay, execute anyway.

But how about this lawyer--defend Merritt and Reinhardt, Nope, you can't do that. So you'll mischaracterize my words instead.

Posted by: federalist | Jan 6, 2016 9:35:14 AM

Daniel: Sorry I missed your joke in my work rush, but I now fixed the typo.

federalist: I am still looking for a workable definition of "lawless" in your vernacular, other than "I know it when I see it" (especially when I see it from judges I do not like). Let me quote a line from a Supreme Court case and ask you whether you would call its author lawless:

"There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa."

Is this a statement from a lawless jurist?

Posted by: Doug B. | Jan 6, 2016 9:58:15 AM

I don't see how I'm mischaracterizing your words, federalist. You say that "lawless rulings can, and should,in the right circumstances be defied." This sounds to me like the very definition of lawlessness. Each citizen deciding for him or herself which judicial rulings are lawful versus lawless and then disregarding rulings personally deemed lawless.

Posted by: lawyer | Jan 6, 2016 10:14:00 AM

That actually sounds like Scalia (I promise, I didn't cheat)---remember, I am of the view too, that the Constitution is more important than "what we have said about it", so you're not going to get much argument from me that courts should be willing (note I said willing, as in thinking about it when deciding a case) to discard outcomes seemingly dictated by precedent (which, as you know, arises from fact-bound situations).

Gleeson's expungement order is lawless. It, in effect (and I am going from memory) requires the government to remove references to historical fact. How in the world can that be justified under existing law? What right does a court have to tell the government (in the absence of statute) that it must forget a historical fact? Even a pardon doesn't do that, and that's explicitly sanctioned by the Constitution.

I'm not going to get into a definitional game with you Doug--I could spend a bunch of time drafting something that probably looks a lot like Rule 11 and imports some notion of treating litigants properly (like, for example, I'd compare and contrast Sotomayor's views on how a capital murderer judgment loser ought to be treated when it comes to changing arguments on appeal--the Alabama S & C case--and her disregard that Louisiana was a judgment winner in that ex post facto case in which she dissented from the DIG---it's really hard to square her positions in those two cases).

I've given you two quotes about how Judge Reinhardt conducted his business---unless you think the Supreme Court got it wrong (highly unlikely given the lack of dissent), there is simply no justification for what Reinhardt did. None. And Reinhardt is not stupid. So how is "lawless" not the right word?

Posted by: federalist | Jan 6, 2016 10:23:22 AM

lawyer--I have posited that the society has a right to resist lawless rulings. Unless you equate "that a judge said so" to law, then what I've said doesn't even rise to the level of a tu quoque argument. By the by, check out Abraham Lincoln's riposte regarding Dred Scott--query, would Dred Scott have been "lawless" for escaping to Canada? And you said that I was urging judges to ignore things--that's a mischaracterization of my position, which is that a society doesn't have to knuckle under just because some judge said so. I don't see how that position is somehow antithetical to the rule of law, rather than the rule of judges. So yes, you mischaracterize what I have to say. And a belief that society has the right to resist some of this silliness certainly doesn't justify appellate judges acting in the manner that Reinhardt has. In fact, that judges act like Reinhardt, and it's tolerated, gives more force to my position.

Yet again, you fail to defend the judges I name and serve up a lame not even tu quoque argument. Pathetic.

Posted by: federalist | Jan 6, 2016 10:41:07 AM

then what I've said doesn't even rise to the level of a tu quoque argument. s/b then pointing at what I've said doesn't even rise to the level of a tu quoque argument

Posted by: federalist | Jan 6, 2016 11:03:19 AM

I'll ignore the ad hominens, federalist, b/c I'm truly curious about the logic of your position. You say that your point isn't that judges should sometimes disregard rulings from higher courts but that citizens should. In other words, civil disobedience. Like Dred Scott escaping to Canada (I say good for him) or the Westboro Baptist crowd ignoring a restraining order to stay a certain distance away from funerals, b/c they believe the order is a lawless one, one that violates the Constitution. (I say not so good for them.)

But if I understand correctly that what you are advocating is simply civil disobedience, doesn't it still come down to personal preference/opinion about what acts of civil disobedience one likes and which ones one doesn't? Or stated another way, which acts of lawlessness one likes and which ones one doesn't?

Posted by: lawyer | Jan 6, 2016 12:02:18 PM

Abraham Lincoln's "rule" as to Dred Scott v. Sandford -- and recall this was before modern understanding of judicial review & in response to only the second time (some quibble some) the USSC overturned a federal law -- was that the case would be binding on the parties but that it should not be accepted as having stare decisis effect immediately.

That should only occur over time; here this would give the Supreme Court the time to see its error, perhaps only apply the case narrowly (e.g., not to all blacks, but only slaves or children of slaves) and probably some time for a new Republican President to appoint new justices who would rule the other way. If the ruling was not followed but the Supreme Court simply re-affirmed the previous holding, however, specific parties couldn't simply ignore it under Lincoln's rubric. They would in effect be taking a chance.

Dred Scott would have a natural right, I guess you would call it, to flee to Canada (he did not; he was freed shortly along with his wife and children), but that would be an act of civil disobedience. Civil disobedience has been long accepted as being within the gambit of the rule of law though how it should be applied is controversial. For instance, Martin Luther King Jr. argued that it was acceptable to resist evil laws (clearly something that will be strongly debated) but was willing to submit to authority, to go to prison.

The use of this "higher law" at best would be warranted in extreme cases and still can involve submitting to the law at the end of the day. Your mileage might vary there for using them not in respect to slaves or segregation but disputed habeas judgements or as some wish same sex marriage or the like.

Posted by: Joe | Jan 6, 2016 12:56:52 PM

Lawyer, you can yap all you want about me being as lawless as Reinhardt, but so what? That I advocate what you call lawlessness doesn't license a federal appellate judge to do what Reinhardt did. Come on lawyer--defend what Reinhardt did. Can you? Nope.

What I am really getting at is the reality that judges do things that are just flat-out wrong (and in many cases knowingly so). You posit that the society is powerless. I am not so sure. If judges knowingly do wrong things, then that is, by definition lawless, and now we are in the realm of power, and power is not limited to the judiciary. Once power overrides the judiciary--then we'll have true lawlessness, and that's something none of us want. But I am not willing to therefore concede that the judiciary should be obeyed uber alles. The judiciary needs to rein itself in, or we may find us without a strong one.

Posted by: federalist | Jan 6, 2016 3:18:08 PM

federalist, I read Belmontes. I didn't see anyplace where the Court described Reinhardt's opinion as "lawless." Am I missing something. I appreciate your opinion that what Reinhardt did was lawless, but that's just your opinion. o be sure he recharacterized facts on remand, but courts do that all the time. Still, I didn't see the Supreme Court criticize him for doing so. Please give the cite to the contrary. But even if there was such criticism, what is "lawless" about what Reinhardt did?

Lawless is what the jerk head of the Supreme Court of Alabama did today, ordering all state probate judges not to issue same-sex marriage licenses. Now that's "lawless."

Posted by: lawyer2 | Jan 6, 2016 6:08:24 PM

Hi again federalist. I can't defend what Reinhardt did b/c . . . I don't know what he did. I haven't read whatever opinion of his that you disagree with. Whether Reinhardt got the law wrong or whether he got it right wasn't what interested me about your post. It was your position that judges who get the law wrong act lawlessly and that citizens should disregard judicial orders they believe are unlawful.
I think you and I agree that civil disobedience is sometimes a good thing; where we differ, I suspect, is in our opinions of in what circumstance it's a good thing.

Posted by: lawyer | Jan 6, 2016 7:35:05 PM

lawyer2, are you kidding me? First of all, that the Court saw fit to reverse the Ninth Circuit in a strongly-wordedper curiam opinion. But really, are you really willing to say that an unexplained change from "substantial" to "cursory" wasn't playing fast and loose with ordinary norms of appellate opinion-writing. It's indefensible, and I suspect you know it. You choose to clown yourself with the ridiculous idea that because the Supreme Court didn't call the opinion lawless somehow it wasn't. Any ordinary citizen looking at this (making no mention of the victim's family who certainly deserved better) would conclude that Reinhardt was either stupid (which he is not) or dishonest. And the idea that the Court didn't criticize the change of characterization is just moronic (I am surprised someone would actually say something that obtuse.) The Court's mentioning of the recharacterization in explicit terms IS criticism. But hey, if you want to be a clown, be one.

As for lawyer---really? Your protestations of just wanting an explanation, which I have given, ring hollow. I called some 'rat judges "lawless", and then you bring up stuff I'd written on an old thread.

And I note that no one here will defend Gleeson's expungement decision on the merits---where is the authority to tell the government that it must "forget" so to speak a historical fact? The simple fact is that there is none.

Posted by: federalist | Jan 6, 2016 8:14:29 PM

Yes federalist, really. You often call judges with whom you disagree lawless, and I find that interesting given that some of your own posts advocate lawlessness. I do though now understand the distinction you make between citizens acting lawlessly (OK) and judges doing so (not OK).

Posted by: lawyer | Jan 6, 2016 8:49:44 PM

I must basically agree with Federalist. For a citizen to engage in civil disobedience while running the very real risk of being jailed for their behavior is a very different thing from any member of the government acting without proper authority. And I agree with Federalist that judges have abrogated far too much authority while not being held in check by responsibility. And when speaking of government actors I would very much agree that authority without responsibility is lawlessness. I've said it before, Chase should have been convicted, 'good behavior' should mean something more than 'not criminal'.

Posted by: Soronel Haetir | Jan 7, 2016 2:11:45 AM

"You often call judges with whom you disagree lawless"---it's hard to understate the sophistry in that statement. The issue is not disagreement--but rather a mixture of willfulness, arrogance and being indubitably wrong. When Judge Merritt, on his own, in the middle of the night, issued a basically ex parte stay of execution (the DAGs had declined to show up for the midnight hearing, which they had every right to do--judges don't really get to demand that people show up outside of working hours), that was lawlessness, and simply because it was clothed in a court order doesn't make it any less so. And I reject wholeheartedly the idea that people who disobey (or evade) lawless court orders are lawless themselves. Dred Scott would not have been lawless by escaping, notwithstanding what a Court said. To take an oft-repeated modern example, does society have the moral right (as opposed to the power, which are two different things) to expect people subjected to bogus restraints on their speech via court order to simply shut up? The answer is clearly no.

Not to put to fine a point on it, but the idea of members of society meekly accepting their fate because a judge said so (with the "said so" being totally and completely untethered to the law) smacks of totalitarianism writ small. From the standpoint of society as a whole, if the judiciary gets openly defied in a big enough situation, and that defiance is successful, we will have traded an independent and strong judiciary, a pillar of our freedom for what, some out of control judges who want to make cases their own science projects. Doesn't seem like a good trade to me.

Posted by: federalist | Jan 7, 2016 9:43:19 AM

And none of y'all can defend Gleeson, Reinhardt or Merritt. Funny how that is--lawyer expends all his energy trying to trap and fails utterly. But the real issue--the lionization of a judge due to his lawless act is left undiscussed. Once again, I own the field, unless you guys can defend this stuff. But you can't--so instead we get a sniveling: "federalist, you're just picking and choosing who gets to be lawless." You totally missed the point lawyer. Did you really think I am not prepared for that sort of bogus criticism?

I can't not mention Joe's post---look at the knots we're being twisted into--Joe refers to some sort of natural law---but natural law allows free speech and all sorts of other things--so why can't people, whenever their "natural rights" get offended simply ignore a court order? Is it only when an important natural law right is at stake? Joe also trivializes a slave escaping as "civil disobedience." Are we really prepared to argue that Dred Scott escaping would have been "lawless"? Really???

Posted by: federalist | Jan 7, 2016 9:51:57 AM

From my reading, I'm not sure exactly what Justice Chase did that was so clearly wrong that it was unjust that he was not removed by a supermajority of the Senate. Now, a case can be made, though some of the things he did look worse in hindsight given norms have changed. Chief Justice John Marshall's involvement in Marbury v. Madison (besides Marshall's own role, his brother was involved too!) would be deemed patently wrong today as well.

But, whatever SH thinks, including the much greater number of people he thinks should be subject to the death penalty, the basic thing is that the people at large don't think this. They keep on choosing people who pick certain types of judges & don't impeach them for acts some think warrants that penalty. And, it is not as if the matter isn't brought up. Multiple times over the years strong denunciation of the bench "overreaching" has been expressed. In one state early on, judicial review itself was deemed illegitimate.

Finally, natural law is not trivial, it is basic to our society -- we after all came about because of the felt belief that just government was not parliamentary supremacy, it was a certain floor of rights. This was "self-evident," so saying it is not saying much. And, when that floor is not protected, we had a natural right to rebel. Yes, slavery was protected by the Constitution, the law of the land, so helping a fugitive slave was in some situations "lawless" as a matter of positive law.

This didn't make it wrong -- but breaking the positive law here is a serious matter given it was passed by a government we agreed to. Even Abraham Lincoln didn't support not enforcing the fugitive slave laws. So, yes, it's not the same thing as not enforcing any court order we disagree with. The matter actually came up in the 1960s: Martin Luther King Jr. broke a court order, that the Supreme Court later held obviously wrong, and marched. The Supreme Court, by split vote, said he shouldn't have did that.

Free speech might be a natural right -- the concept of "natural rights" debated -- but it's also expressly protected by positive law, particularly the 1st Amendment. OTOH, the right of slaves to escape to Canada or the right to help them to escape? That is a natural right in opposition to positive law. It is "civil" disobedience -- it is disobedience of civil law. It was greatly divided people at the time, including those who thought slavery itself was wrong.

Posted by: Joe | Jan 7, 2016 11:12:36 AM

Once again I'll ignore the name-calling, federalist, b/c I find the issue interesting.

You and I agree, I'm pretty sure, that judges should always follow the law. (E.g., I think we would agree that what Justice Roy Moore is doing in Alabama in knowingly and intentionally disregarding the law is 100% wrong.) I still haven't read the opinions of Judge Reinhardt et al that you find offensive, but I'll assume you're right in your view that, like Justice Moore, those judges knowingly and intentionally disregarded the law. Bad judges, one and all.

What I'm still curious about is your opinion that citizens should disregard the law if they believe the law is unconstitutional. Lawlessness, civil disobedience - call it what you will; it's the same thing. I think your position is that your approval of such lawlessness/civil disobedience isn't based on policy preferences re whatever law is being disregarded but is instead based on the principle that citizens just can (should?) disregard any law they believe is unconstitutional. So that in addition to applauding Dred Scott, you would applaud the Oregon federal-land occupiers in their lawlessness/civil disobedience; you would applaud the Westboro Baptist folks if they defied injunctions they perceive as violating their constitutional rights, etc.. What I'm curious about is whether you think such good-faith belief in a law or order's unconstitutionality should be a defense if the person disregarding the law or order is charged with the same. Or should he/she just have to accept whatever punishment is meted out?

Posted by: lawyer | Jan 7, 2016 3:24:36 PM

lawyer, I frame the issue as more of whether society has a moral right to do X to someone who has his or her freedom unjustly taken away or to stand down when the society does not vindicate his or her victimization.

Posted by: federalist | Jan 8, 2016 9:11:04 AM

By the way, a little coda to this discussion--check out Judge Reinhardt's concurrence in United States/Moser v. $28,000 in U.S. Currency. It is an incisive, well-written opinion. He's not stupid. That just makes his antics in the cases I have cited all the more reprehensible (and sad, actually).

What is also sad is that no one here wants to dig into the merits of what Gleeson did. I don't do this sentencing thing for a living. I wish those that did had more to say on the merits--I can take the slings and arrows (I dish them out.), but the vapidity of the discussions are tedious.

Posted by: federalist | Jan 8, 2016 9:22:49 AM

s/b vapidity of the discussions is tedious

Posted by: federalist | Jan 8, 2016 9:24:50 AM

federalist, thanks for your civilized response. I agree with you completely re the tedium and vapidity of the commentary to this otherwise terrific blog. I also find the slings and arrows tedious, and distracting. I long ago stopped even clicking on the comments as a general rule. For reasons I now can't remember, I did click on them the other day and found your "lawlessness" comments interesting.

Posted by: lawyer | Jan 8, 2016 10:18:49 AM


I would not so much say that a citizen should ignore an unjust court ruling as say they should be willing to with due consideration of the consequences. It's that whole tolerate evils while evils are tolerable bit. If the evil of the court ruling is not tolerable then of course it won't be, but the undesired results of defying a court order are such that more evils will be found tolerable by those under the sanction.

For an example of this look to the cases Eugene Volohk has been highlighting lately with unjustified speech restrictions than are then held unconstitutional on appeal. As far as I know in these cases the speakers have generally refrained from the barred activity during the appeals (which can often take a year or more). This despite how clear-cut the appeals courts have been finding these cases.

Posted by: Soronel Haetir | Jan 8, 2016 10:40:37 AM

And SH, to put a fine point on it, I don't think society has the right to demand that the muzzled speaker not speak, nor do I think that it has the right to punish those who resist such orders. It may have the power, and the citizen may have to suffer, but I don't think it right to pretend that this is a moral thing.

Posted by: federalist | Jan 8, 2016 10:46:23 AM

SH, I tend to agree with you - that in the best tradition of civil disobedience one must be willing to accept the consequences of disobedience to what one considers an unjust law or ruling. E.g., people like Kim Davis shouldn't expect not to be held in contempt or otherwise sanctioned for their disobedience of the law.

I'm curious what you think of the restrictions that have been put on the Westboro Baptist folks (the ones who harass grieving family members at military funerals). Unconstitutional restriction of their free-speech rights?

Posted by: lawyer | Jan 8, 2016 12:00:47 PM

federalist, still curious (genuinely, not trying to pick a fight). You say that you don't think society has the right to punish those who resist orders that infringe on free speech; does that mean you think society would not have the right to punish the Westboro Baptist folks if they violated a court order that infringed on their right to freedom of speech? I'm using the Westboro Baptist folks in my hypothetical b/c I think all reasonable people would agree that the the content of their speech, like that of the KKK, is odious. Constitutionally protected perhaps, but odious.

Posted by: lawyer | Jan 8, 2016 12:11:17 PM

lawyer, remember, I frame the issue as a moral one and one of injustice, and morality involves the general give-and-take that we need to have in a society--but if a court order is clearly wrong and there's some element of willfulness involved in it (or serious unfairness) then a citizen would be justified in treating the order as a brutum fulmen, and society would not be justified in using the power of the state to punish the person. I don't really get into the what people believe debate. Frankly, I don't really care all that much. The Westboro people are savages, but so what? I don't particularly care for Commies either---doesn't mean that Commies cannot have a moral claim to be able to speak.

No offense lawyer, but this is somewhat a tedious discussion. Did you really expect me to say that the political views of people unjustly subjected to court orders matters in the analysis? And you somewhat mischaracterize what I am saying. I don't think that people should generally take the path of defying court orders--what I am saying is that court orders bereft of fairness and logic (e.g., those highlighted by the Volokh Conspiracy) bring us into the realm of naked power and when power is involved, others may decide to wield it, and society really doesn't have a right to complain when things get messy. I don't see how this is really remotely controversial.

By the by, the government routinely blows off binding court orders when it comes to disclosure---nothing seems to ever happen there--so now we have situations where defiance of a court order produces much different results depending on who is doing it. That doesn't really smack of the rule of law, now does it?

Posted by: federalist | Jan 8, 2016 1:26:07 PM

Hmm. You appear to be saying that the political views of people unjustly subject to court orders doesn't matter in the analysis. But who decides when an order is unjust? Who decides, that is, when a court order is clearly wrong or has an element of willfullness or is seriously unfair or is bereft of fairness and logic so that society doesn't have a right to complain when the order is disregarded? The party subject to the order? I'm sure the Westboro Baptist folks think the restrictions imposed on them are all of those things. If it is the party subject to the order who decides,the Westboro Baptists, I assume you would say that society doesn't have the right to complain when they disrupt a military funeral. And if it isn't the party to the order who decides, who is sit?

Posted by: lawyer | Jan 8, 2016 3:18:27 PM

lawyer, this is tedious. The issue is one of right and wrong. I have posited that no man should be subjected to an irrational and unjust order from a court--obviously, this assumes that such a thing is knowable in a particular case. (We've agreed that some of the stuff exposed on Volokh are just such orders.) And we've agreed on that general principle and that leads inescapably to the conclusion that society really doesn't have the moral right to harm those subjected to such an order who choose not to follow it. So now, if society (or more accurately a societal actor) is going to do that, we're in the realm of power.

As for "who decides"--that's really under the rubric of the power issue that I have been talking about, and it literally has nothing to do with what we are talking about and it certainly doesn't undercut my case--unless you want to argue that someone has to decide, otherwise we'll have anarchy--my response is "so what?" that doesn't mean society has the right (as opposed to the power) to ask people to stand down. Perhaps society should do a better job disciplining judges.

As for Westboro, so long as they are not engaging in disorderly conduct and are protesting in a manner that does not exceed the protections given to them by the First Amendment, then they have the legal right to do what they are doing. Why do you want to engage in a debate about this---Didn't Village of Skokie settle that? As for the specific restrictions on these guys, I don't know what they are, and frankly I don't much care.

Posted by: federalist | Jan 8, 2016 3:50:33 PM

"We've agreed that some of the stuff exposed on Volokh (are irrational and unjust orders)." When? I haven't read Volokh and i don't know what orders you are referring to.

Posted by: lawyer | Jan 8, 2016 5:16:37 PM

Hey, Lawyer. You have some nerve calling the Comments tedious. Read your exchange with federalist, another lawyer.

There is something deeply wrong with you lawyers. Stupid and boring is not good.

Posted by: Supremacy Claus | Jan 8, 2016 11:58:30 PM

lawyer, you said you agreed with SH---guess i read too much into that---but whatever--you miss the point, and i don't really feel like discussing this anymore. I take on all comers, unlike no one else in these comments

Posted by: federalist | Jan 9, 2016 8:20:14 AM

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