Cruelty flourishes in anonymity. Vindictiveness is easier in a lynch mob when a person acting alone would not want to have others single out an individual person's behavior.
It is like that when judges practice issuing unsigned orders without bothering to write opinions let alone sign them. We have had a rash of unexplained, unsigned orders of late, and two examples came in the same case.
Many commentators have pointed out that hiding behind unsigned opinions is cowardly. That is not the subject of this article, and we will say no more about that here.
Many commentators also write that it is hypocritical for judges to rule in favor of outcomes they desire, without taking responsibility -- or credit or blame, as the case may be -- for the outcomes. That too is not the subject of this article, and we will not mention it here again.
The first of the two examples of the practice comes from Texas. A panel of judges appointed to the Fifth Circuit Court of Appeals ordered a trial judge not to hold a hearing. The three people on the panel did not write an opinion, and did not sign their order. They simply cancelled the hearing that another judge had ordered.
The second of the two examples from the same case also comes from Texas. Five of the justices on the U.S. supreme court let an infamous anti-abortion Texas law go into effect because there were doubts about the law's constitutionality. This result was the opposite of what justices would do most of the time in such cases, even if the justices in question personally favored the constitutionally questionable State law. In this case, though, the five did not even write an opinion, and they did not sign their order.
(SarahBeth Maney/NewYorkTimes)
Yet we know who they are; that is not the point. The Fifth Circuit panel in question was headed by Edith H. Jones, who has never stopped being a leader of her (minority) party. She was joined by two others. The Five supreme court members in question are named Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. So we know who they all are.
But that is not the point. The point is that they were supposed to behave as judges, and they did not. They behaved as power brokers, wielding power for a minority view at that. Perhaps that is why they stopped being judges and became power brokers.
Both examples display that the core purpose of anonymity seems to have been a cloak for the elimination of previously recognized constitutional rights.
In the Fifth Circuit example, the unsigned order eliminated Due Process by the expedient of cancelling a hearing; no-one has the opportunity to be heard when their hearing is cancelled.
(J. Scott Applewhite/Associated Press)
In the supreme court example, the unsigned order eliminated the constitutionally recognized right of a woman to be free from government interference in the early stages of her decision whether to give birth. I am personally in favor of life, but I am not in favor of vindicating life by eliminating other people's rights.
The Epistle of James was a part of last Sunday's services in my Church. James' Epistle is translated in different ways when he wrote about people acting like judges and preferring people with fine clothes over poor people in their churches. One translation has it that people acting in that way were acting like judges, "and corrupt judges at that." Another translation has it that people acting in that way were "judges with evil designs." Jas. 2:4. Both translations fit these examples.
There is a proper place for short rulings by panels of judges that are not signed by the individual judges on the panel. These are called "Per Curiam" decisions, meaning that they are decisions issued from the court as a whole. They are reserved for decisions that are so clear that no opinion is necessary and no individual signature is required.
They were never meant to be issued when decisions are not clear.
They were never intended as places to hide.
To borrow a Biblical phrase that seems apt, they were never meant to disguise evil designs.
A version of this article was previously published on Claims and Bad Faith Law Blog on Wednesday, September 8, 2021. Reprinted here with permission.
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