Courts

Fourth Circuit Airs Its Dirty Laundry In Public, And I, For One, Am Here For It

Furor over dissents!

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Earlier this week, the Fourth Circuit denied an en banc hearing in Jane Doe v. Fairfax County School Board. That’s… probably not something that would *normally* garner much attention, but, well here we are. In the case, the full court held in a 9-6 decision it would not to reconsider its decision that plaintiff, a student who sued their school board after being sexually assaulted, should get a new trial after the court found the jury used the wrong standard in determining the school’s knowledge of the assault.

In a concurring opinion, Judge James Wynn decided to call out his colleagues that opted to write dissents in the case. He wrote that there are “serious drawbacks” to his colleagues’ “advisory opinions that read like editorials.” He went on:

“To the extent some ‘members of the Supreme Court’ have indicated ‘they find the[se] dissents useful in deciding whether to take cases on certiorari,’ … this appears to extend an invitation for individual judges to freely submit advisory opinions to the Supreme Court,” Wynn wrote in a concurring opinion attached to the order denying en banc review, adding that such dissents provide “one judge’s blueprint for how the favored party ought to frame the case before the Supreme Court.”

And Marin Levy, a law professor at Duke Law School, told Law.com, these dissents impact court legitimacy by airing out the court’s “dirty laundry”:

“From a legitimacy perspective, the concern is that these dissents can read as the court airing out its dirty laundry. And from a substantive perspective, the concern is that there are now advisory opinions—with no force of law—that might muddy the legal waters,” she said. “Because the court of appeals has voted not to rehear the case, the opinion of the original panel stands. As such, a dissenting opinion from the denial to rehear the case amounts to the view of one, or more, judges about what the holding should have been, but that interpretation of law is nonbinding. It is not the law of the circuit.”

I don’t want to spoil it for Professor Levy, but the entire Federal judiciary is kinda experiencing a crisis of legitimacy right now. Maybe my outrage-o-meter has been recalibrated with ever more constitutional freedoms now on the chopping block, but I just can’t get too worked up over this one. Yes, the dissenters, Republican-appointed jurists J. Harvie Wilkinson and Paul Niemeyer, are basically asking the right-leaning Supreme Court to review the case. But honestly none of that is particularly surprising given the abject politicization of the judiciary.

Judge Wynn’s calling out of his colleagues? Now, that is noteworthy. And I’m here for it anytime a federal judge wants to point fingers.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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