lemon lines

There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

[H]ere, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs’ experts. Yet something doesn’t become “scientific knowledge” just because it’s uttered by a scientist; nor can an expert’s self-serving assertion that his conclusions were “derived by the scientific method” be deemed conclusive, else the Supreme Court’s opinion could have ended with footnote two.

…

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert testimony because it was not “derived by the scientific method.” Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

Judges must apply the law as written, not as their instincts tell them Congress probably meant it. Language, when properly interpreted and literally applied, provides a meaningful constraint on judicial action; when we allow ourselves to be guided by intuition that Congress didn’t really mean what it said, we are no longer interpreting laws, we are making them.

I write separately because I believe that deference is neither a blindfold nor a bandana.