I hope that my regular readers will excuse this short diversion of an "off topic" court decision. Very briefly, I want to note a recent en banc decision of the U.S. Court of Appeals for the Second Circuit that weighs in at 184 pages long, including 4 separate dissents. The dissent of Judge Calabresi is notable, among other reasons, for its poetic introduction and its footnote quote from a decision of Chief Justice John Roberts that defines "judicial activism".
A simplistic reference to "what this case is about" would be that it involves, in part, a civil rights claim against members of the Executive Branch during the Bush Administration for alleged mistreatment of a Canadian citizen by the CIA on another continent. Very heady issues, but in the event that a definition of "judicial activisim" by the current SCOTUS Chief Justice would be useful to have handy in the future, the quote follows from footnote 1 of Judge Calabresi’s dissent. The whole opinion, styled Arar v. Ashcroft, No. 06-4216-cv, (U.S. Ct. App., 2d. Cir., Nov. 2, 2009), is available here.
1 I use this much abused phrase “judicial activism,” in its literal sense, to mean the unnecessary reaching out to decide issues that need not be resolved, the violation of what Chief Justice Roberts called “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring).
The introduction to Judge Calabresi’s dissent follows:
CALABRESI, Circuit Judge, joined by Judges Pooler, Sack, and Parker, dissenting.
I respectfully dissent. I join Judge Sack’s, Judge Parker’s, and Judge Pooler’s dissenting opinions in full. But, because I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay, I add a few words of my own, “. . . more in sorrow than in anger.” Hamlet, act 1, sc. 2.
My colleagues have already provided ample reason to regret the path the majority has chosen. In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy. See especially dissenting opinion of Judge Parker.
All this, as the other dissenters have powerfully demonstrated, is surely bad enough. I write to discuss one last failing, an unsoundness that, although it may not be the most significant to Maher Arar himself, is of signal importance to us as federal judges: the majority’s unwavering willfulness. It has engaged in what properly can be described as extraordinary judicial activism.1 It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights.
Hat tip to my friend and fellow member of the Delaware Bar, Abbott Leban, for sending me this decision authored by his classmate at Yale Law School.