For the most part judges serve as a critical link in the ordinary flow of administration.
Tonight, the sixth and final season of Longmire, the Western series produced by Netflix, begins streaming. Based on Craig Johnson’s Sheriff Walt Longmire mystery novels, the show has earned an intense, devoted following. Originally it was an A&E series, the most watched scripted drama ever produced by the channel. When Longmire was inexplicably cancelled in 2014 after its third season, fans were incensed. Netflix, sensing an undervalued market opportunity, quickly picked up the series. By most accounts, Longmire has grown as a dramatic series under Netflix’s auspices. It’s not hard to understand why. Take the man in the lead, Sheriff Walt…
A cocktail party is an odd place, perhaps, to discuss the rule of law, but I have no small talk and neither had my interlocutor. Our views on this subject were, fortunately for the flow of conversation, somewhat at variance.
My interlocutor asked me whether I believed in redemption and forgiveness, that is to say the possibility that a prisoner incarcerated for a serious crime could redeem himself and be forgiven. I said that I did not, at least not in any sense that had any legal bearing. From the religious point of view, of course, it was different.
Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality. Unlike some of her other obviously injudicious remarks, her opinion on this matter may be widely shared among judges. When I asked a friend who had become a federal appellate judge what most surprised him, he said it was norm among his colleagues to suppress written dissent in all but important cases. He was troubled by the practice but felt pressure to conform.
My friend is right to feel uneasy. It is a bad practice. First, it smacks of judicial hubris. It is often difficult to be sure how important a decision will be in the long run.. The fabric of the law is complex. For instance, the development of minor exceptions to a doctrine can eventually lead to pressure for its overthrow. Even cases that are minor to Supreme Court justices can have large ripple effects.