Last month, Republican Fifth Circuit Judge Jerry Smith pitched a tantrum in open court, demanding that the Department of Justice respond to some imprecise political rhetoric by President Obama in an attempt to embarrass the president. Today, the staunch Republican judge raised further doubt about his ability to separate politics from the law by suspending a decision benefiting Planned Parenthood just hours after it was handed down by another judge.
Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.
This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:
IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).
Several things are significant about this very brief order. First, Judge Smith is a court of appeals judge, and it is very rare for an appeals judge to act alone in this way. Federal appeals courts almost always act as three judge panels, and for very good reason. Judge Yeakel is no less a federal judge than Judge Smith, and he is no less competent that Smith to interpret the Constitution. A court of appeals’ legitimacy generally flows from the fact that it brings more minds to a legal question than a trial court — but this cannot happen when a single judge acts alone.
It is true, as Judge Smith notes, that the Federal Rules of Appellate Procedure permit a single judge to stay a lower court’s decision, but that rule only permits the judge to do so in “an exceptional case in which time requirements make that procedure impracticable.” It’s not at all clear what kind of exceptional time constraints justified allowing Judge Smith to act alone here rather than first consulting with two of his colleagues before issuing this unusual order.
More importantly, it’s unlikely that Smith gave his order much thought at all before handing it down. Judge Yeakel handed down his order weeks after this case was filed, and he produced a 24 page explanation of why it was justified. Smith spent, at most, a few hours — and he offered no explanation whatsoever.
If nothing else, today’s order highlights the foolishness of Smith’s partisan tantrum several weeks ago. Unusual orders — even unusual orders handed down by single judges — are sometimes justified even if the legal reasoning behind such an order is not immediately apparent. Nevertheless, the legitimacy of such orders flows from the public’s trust that they are motivated by obedience to the law and not by partisanship, ideology or personal grievances. Judge Smith thumbed his nose at that trust when he lashed out at Obama last month, and undermined the legitimacy of the entire judiciary in the process.