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October 27, 2006

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dissenting

Some people commented that judges should be insulated from these concerns. However, many state-court judges are elected. Also, judges face real threats from wacko's whipped into a frenzy by people who hate "judicial activists." Given that any human would be impacted by outside opinion to some degree, if one truly believes an opinion should not be influenced by public opinion, a judge should wait until after an election. That way, they will feel less outside pressure. Thus, contrary to what Geoffrey R. Stone wrote, allowing for a delay would reduce partisan influences.

Some of the commenters seem to assume voters are rational actors: a new appellate decision is not simply an added bit of information to place into their voting decision matrix. Unfortunately, the swing voters seem more influenced by what they ate for breakfast than concerns over the policy implications of an election. A judicial opinion that shapes public discourse before an election can have an impact that is greater than its longer-term real-world effects.

Of course, I do recognize that the 24-hour news must talk about something; if the discourse will be otherwise shaped by sex-scandals and advertisements about terrorist wolves, perhaps it will be good that interesting opinions come out before an election.

Another problem with controversial opinions before an election is that they will be misread or used in a dishonest fashion. A judge may wish to have the outcome be reported on in a less manipulative atmosphere.

Tom Balmer

I apologize for coming late to the game, but I have not been a regular Chicago blog reader. I am, however, an appellate judge, and I have a couple thoughts. First, a point no one seems to have mentioned (although one person wrote about court personnel changes in NJ), is that the issue is much more fraught in state courts, where an opinion could be rushed out or held up because one or more of the judges may be up for election. Second, as Geof Stone notes re: Burger and Roe v. Wade, in the appellate courts I'm familiar with it's easy for one member to affect the timing of an opinion by a couple weeks either way, through a variety of otherwise legitimate strategies. Third, there are more and less legitimate reasons to time the release of an opinion -- Sunstein summarizes the appropriate arguments about timing surrounding an election, but suppose the court is going to invalidate part of a taxing statute: it doesn't seem inappropriate for the court to hurry to get it out in time for the legislature to deal with whatever revenue impact the decision may have. That said, my court (the Oregon Supreme Court) generally releases opinions when they're ready to go, which, in practice, means that the author has a significant amount of discretion over the release date. Cases have been hurried up for reasons as diverse as vacations, impending retirements, and CLE programs. Even if it did not "feel" wrong (which it would) probably the greatest deterrent to "timing" for political reasons, from the court's perspective, is the court's inability to predict what decisions will have political repercussions and shape those repercussions will take. That's not our business, and we're not very good at it.

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