September 27, 2004

Judge Jones, or How Things Change

by Chris Geidner

In looking through news articles about Justice Souter's Supreme Court nomination for one of my classes, I came across this about the other person brought to interview with then-President George H.W. Bush -- Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit:

Judge Jones said she could not recall having taken a position on abortion rights from the benc or in a public statement. She also said she did not think she had ruled on a case involving affirmative action or First Amendment issues.

Asked whether she could point to any of her opinions that particularly expressed her judicial philosphy, she said: "One of my goals is not to grandstand from the bench. I like to write to the point and on the issue that is at hand."

Robert Suro, The Judge Not Chosen Is Less of an Enigma, N.Y. Times, at A18 (July 29, 1990).

Now, forty-five months into the presidency of the elder Bush's son, Judge Jones is behaving somewhat differently. In an opinion discussed across the blogosphere, Judge Jones wrote:

One may fervently hope that the [Supreme] Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.
McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 17, 2004) (Jones, J., concurring) (pdf file). Judge Jones wrote this in a concurrence to her own panel opinion rejecting the original Roe v. Wade plaintiff's request to have the judgment in that landmark case set aside under Federal Rule of Civil Procedure 60(b).

I have never seen such a concurrence. What is more "grandstanding" than needing to concur with your own opinion? Because a concurring opinion normally limits or expands upon the majority or plurality's opinion, this concurrence to her own opinion is an opportunity for Judge Jones to write something beyond the point of the case (since she -- and her colleagues -- didn't find it necessary to the decision of the case).

This was not at all addressing "the issue at hand," in other words, which in 1990 was her sole aim in adjudicating cases.

September 27, 2004 12:51 PM | TrackBack

Concurrences to your own opinion, while not frequent, are not unheard of in the field of law.

Posted by: Chuck Jones at November 8, 2004 12:12 AM
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