Are Activist Judges Efficient? Who Cares? What Matters Is That They Do Justice


There has already been an outpouring of commentary on the leaked opinion in the Supreme Court’s pending Dobbs case, in which Samuel Alito (apparently joined by four of his colleagues) will not only decide that Mississippi’s 15-week cutoff for abortion access is constitutional but that Roe v. Wade was “was egregiously wrong from the start” and so “must be overruled.”

That would-be ruling of the Court, which contains some of the most embarrassing legal and historical arguments that I have ever seen, deserves all of the mocking abuse that is being heaped upon it. Although I am tempted to add to the chorus of responses, I will instead point readers to a series of ten columns (and counting) published on Dorf on Law by my Verdict colleague Sherry Colb, the first of which—“All Hail Justice Coathanger”—was published on May 5.

Professor Colb pulls off the difficult feat of balancing analytical rigor with sustained righteous fury, exposing Alito’s illogic and hubris while making it clear how the theocratic approach favored by the Court’s majority is in the process of ruining American jurisprudence—all so that, in her words, the “government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve.”

If my column today achieves nothing more than increasing the readership of those ten Dorf on Law columns, I will consider it a good day at the office. That is why I am going on at some length here, even though my topic in this column is only loosely related to Professor Colb’s essays. Even so, my analysis below does draw inspiration from one of those columns, “Sam Alito and his Big Dicta,” in which she makes an important point about the holding-versus-dicta puzzle that is familiar to lawyers and law students everywhere.

Specifically, I will discuss below whether there is a reason that judicial opinions should not only embrace dicta but should aspire to be as encompassing and expansive as possible, all in the name of one of the most misunderstood concepts in modern legal analysis: economic efficiency. The answer is no, but for surprising reasons.

Why Are American Judges Supposed to Be Minimalist?

The Colb analysis on this point is motivated by, among other things, her justified disdain for the hypocrisy that fairly drips from Alito’s draft opinion. After all, Alito mocks Justice Harry Blackmun’s Roe majority opinion for being mostly dicta, but Alito’s repeal of Roe is itself dicta on steroids.

Professor Colb usefully begins with definitions of the key terms:

What is dicta? The answer to that question is not entirely straightforward, but here is a rough and ready definition. Dicta refers to aspects of a legal opinion that are unnecessary to deciding the case between the parties. Holding, by contrast, is that part of the opinion that resolves the legal conflict between the parties.

Most everyone who has confronted this distinction initially finds such a rough-and-ready summary useful and convincing, only to come quickly to the conclusion that this is all rather murky. After all, if the holding is nothing more than the outcome of the case, then (as Professor Colb also suggests) one could conclude that no appellate opinion should say anything other than: “The lower court’s decision is upheld/reversed.” Anything beyond that is arguably dicta, because every attempt to justify the outcome will necessarily involve articulating principles of law and logic that might be applicable to other cases.

But is it not good that a judicial opinion explains how the jurists in question reached their conclusion? After all, if precedent is to have any continued role in our legal system—a big “if,” based on what we are seeing from this Court’s recent decisions—future litigants (or even potential litigants, which means everyone) would want to know the line of reasoning that led to a lower court’s decision being upheld or reversed.

If a court rules that, say, Criminal Statute X does not violate the Eighth Amendment’s prohibition of “cruel and unusual punishment,” a reasonable observer would want to know what the judges who issued that ruling think “cruel” means, what “unusual” means, whether the two words are to be read conjunctively or disjunctively, and so on. Because the Constitution itself contains no definition of the key language, courts are forced to draw lines that are based on something other than original text. They must engage in legal reasoning, thus risking issuing mere dicta.

When I was clerking on the Tenth Circuit twenty years ago, there was a judge elsewhere in the circuit who was positively obsessed with narrowing the scope of every holding to which they signed their name. It became something of a running joke among the other judges and their clerks, with everyone trying to guess just how minimalist the final opinion would become. If a draft opinion was circulated that said, for example, that a defendant’s hiding an object under his garment was relevant to the analysis, this judge would surely tell us to change “object” to “book” and “garment” to “short-sleeve T-shirt.” After all, we were told, the case could turn out differently if the facts were different. No amount of generality was to be tolerated.

Most judges are not that extreme, of course. Even so, Article III’s case-or-controversy requirement is generally taken to mean that a judicial opinion can only rule on the actual case at hand, not on a broader category of cases of which the current one is merely a subset. At most, judicial reasoning must only (in this view of appropriate jurisprudential practice) involve the bare minimum rendition of the logical rules that support the outcome. Thus, a court could write that Criminal Statute X is unconstitutional because it involves punishment that, though common at many points in history, is now seen as grotesquely inhumane. This at least tells us that the people who signed onto this opinion are not “original public meaning” originalists, that they think that the words “cruel and unusual” are to be read together, and that public attitudes about punishments are dispositive in interpreting the Constitution.

That is, of course, a lot more than “X is unconstitutional.” Even so, it can still leave a lot of things unsaid. Worse, a court that is committed never to explicating beyond the bare minimum reasoning in support of its holdings can rightly be accused of playing silly games that waste everyone’s time, effort, and resources.

Yeah, Judges Should Legislate from the Bench

One of the law review articles that sits on my long-term to-do list is titled “On the Economic Efficiency of Legislating from the Bench.” I wrote that title the first time I came across the extreme version of the no-dicta approach to judicial opinion-writing. What, I asked myself, was the point in having judges coyly refuse to tell everyone what they were truly thinking? Why force everyone to wait for enough examples of opinions to be handed down for us to play connect-the-dots to figure out what the judges wanted us to do?

One of the most embarrassing examples of this problem came up in, of all improbable places, a Supreme Court ruling on tax law. Justice Benjamin Cardozo, whose work I have otherwise long admired, has been laughed at for decades for having written this: “The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.” As one edition of the Federal Income Taxation casebook that I use put the point archly: “If a summer associate were to put that answer into a legal memo to the hiring partner, would she be offered a job?” Even so, the Supreme Court approvingly quoted Cardozo’s punt in a case almost three decades later, leaving lawyers and everyone else with no firm guidance about how the Court would rule on even mildly different facts.

But even those examples at least involve a court that is unwilling or unable to come up with a legal rule to articulate. In the latter case noted above, the Court offered a word salad about what the word “gift” might mean in the Internal Revenue Code, but it was not in any way hiding its ultimate, deeper reasoning. It simply had none.

It is quite different when a court decides not to tell people what its reasoning is, in the name of not issuing dicta. In an abortion case, the Supreme Court could say that a ban at 15 weeks is unconstitutional, and then it could rule that a 31-week ban is constitutional, converging on the point where the Court has said that bans before 22 weeks are unconstitutional and bans after 22 weeks are permitted.

But why do it that way? If the judges know that 22 weeks is their red line, why not say so? And to be clear, I am indeed saying that if Alito and his bloc are prepared to hold that all abortion restrictions are constitutional—or even that the Constitution itself forbids abortion, thus meaning that it is not (as Alito’s leaked version claims unpersuasively) that abortion is to be left to the people’s representatives—then they should say so.

I understand that there is a secondary argument against this approach, which is that precedents are difficult to overturn, which means that there is some value to having courts move slowly. In the abortion context, that argument has special urgency, because the more aggressively this Court moves, the more women will be harmed. But given that the Court has already figured out how to effectively ban abortions via its so-called shadow docket (refusing to block Texas’s infamous SB8 and its $10,000 citizen bounty-hunter system, now being replicated in other states), the idea that the Court’s adherence to incrementalism will save the day is difficult to take seriously.

But setting aside the extremely important issue of abortion rights, my point here is that it makes no sense as a general proposition for courts to say: “We know where we’re going to draw the line, but we won’t tell you until you guess several more times.” Especially because each guess is a very expensive proposition that can take years to play out, it hardly makes sense for courts to guard their reasoning so jealously.

In the title of my not-yet-written article, I pointedly use the phrase “legislating from the bench,” which is a conservative talking point against “activist liberal judges.” As Professor Colb points out, Alito is still fulminating at the idea that the Roe opinion “reads like a statute,” because it laid out its trimester-based reasoning for all to see. Better, one supposes, that the Court had reverted to the nonsensical guessing games of purportedly non-activist judges. (Again, Professor Colb is right to mock Alito for attacking dicta in “an opinion that is itself a festival of dicta,” but that is a different point.)

Because I had been an economist for many years before deciding to move into the law, I had long been a critic of conservative economists’ extremely narrow concept of efficiency—a concept that opportunistically broadens whenever necessary to justify a politically conservative outcome. In my debates with right-leaning economists, their frequent (and dishonest) response was to say that “efficiency is easy to define, because it’s about avoiding waste.”

The notion of waste itself is not at all self-defining, but even setting that aside, one might think that there are situations in which something is obviously wasteful. And one might even think that not forcing people to litigate case after case, trying to pin the tail on the donkey as the Court spins us around blindfolded, would qualify as a perfect way to avoid being wasteful.

The problem is that seemingly straightforward applications of “neutral” economic principles somehow cannot be allowed to reach a liberal result. As another example, one might think that it would be crazy to allow tortfeasors to escape liability by forcing every injured party to litigate their cases separately. Yet conservative “no judicial activism allowed” ideologues champion judge-made limitations on class-action suits, with the inevitable result being an increase in economic damage and harm to people and property.

Similarly, the state legislature in Florida recently passed a bill that puts a peculiar limit on attorneys’ fees in lawsuits against insurance companies. In a challenge to that law, some plaintiffs pointed out that the amounts of money involved in individual cases “are generally not significant enough for a lawyer to agree to represent the contractor on a contingency fee basis[,] and it is not economically reasonable for the contractor to … pay a lawyer on an hourly basis to recover the amount(s) owed.” So the new law promotes waste by giving insurers the incentive to deny meritorious claims, safe in the knowledge that the claims will never be challenged in court.

The larger point is that there is often every good reason for courts to “act like legislatures” in order to avoid wasting everyone’s time and money. Similarly, there are other cases in which legislatures can create waste by preventing the legal system from operating normally.

Even though Alito and his wrecking crew are being utterly hypocritical, and Professor Colb is completely right when she says that his opinion is riddled with rank dicta (she writes: “what does a zygote have to do with a 15 week[] fetus, after all?”), the larger problem is that what he wrote is indefensible, not that it was insufficiently incrementalist. They knew where they were going, and they went there. In that sense, they were being efficient.

Fortunately, I have always argued that efficiency has too many meanings to be the basis for making decisions. Alito’s ruling will save us all a lot of uncertainty and litigation costs, but only at the cost of taking away the bodily integrity of anyone who might become pregnant. That seems like a much more important thing to worry about than a tendentious definition of efficiency.

Comments are closed.