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Posted by: Dan Kervick

I don't think this is so mysterious

Let's set aside the fact that it is likely that Gonzalez is simply lying right now about the intention of his

If I were to rule as Justice Owen has ruled, it would be an unconscionable act of judicial activism

Justice Owen's ruling is not an

Suppose Owen's ruling was the result of reasoning grounded in assertions X, Y and Z, and Owen's sincerely believed that assertions X, Y and Z were an accurate interpretation of the Texas abortion statute that was at issue.

Suppose Gonzalez sincerely believed that statements X, Y and Z constituted a faulty interpretation of the statute.

Then, if Gonzalez were to rule as Owen did, that is, issue an opinion based on the very same reasoning, grounded in the very same assertions X, Y and Z, then Gonzalez would have issued a dishonest opinion, one in which he intentionally substituted his own judgment for the intent of the Texas legislature. But assuming Owen honestly believed in the correctness of her interpretation, her identical opinion would not be dishonest, and not a case of subst

Posted by: Dan Kervick | Apr 21, 2005 11:58:38 AM

Posted by: Dan Kervick

Sorry, I hit the "post" button by mistake before the previous post was fully written. Here is the complete post:

I don't think this is so mysterious. The issue does not involve any thorny metaphysics about the individuation of act types, but only questions about which descriptions apply to act types or act tokens, given certain extrinsic properties of those act.

Let's set aside the fact that it is likely that Gonzalez is simply lying right now about the intention of his original statement. The question is how the following two statements by Gonzalez can be simultaneously true:

1. If I were to rule as Justice Owen has ruled, it would be an unconscionable act of judicial activism

2. Justice Owen's ruling is not an unconscionable act of judicial activism.

It can easily be seen that these are logically compatible statements. Suppose Owen's ruling was the result of reasoning grounded in assertions X, Y and Z, and Owen sincerely believed that assertions X, Y and Z were an accurate interpretation of the Texas abortion statute that was at issue.

Suppose Gonzalez sincerely believed that statements X, Y and Z constituted a faulty interpretation of the statute.

Then, if Gonzalez were to rule as Owen did, that is, issue an opinion based on the very same reasoning, grounded in the very same assertions X, Y and Z, Gonzalez would have issued a dishonest opinion, one in which he intentionally substituted his own judgment for the intent of the Texas legislature. But assuming Owen honestly believed in the correctness of her interpretation, her identical opinion would not be dishonest, and not a case of substituting her judgment for the legislature.

This is of a piece with the observation that the very same statement, issued by two different people, can be a lie in one case and not a lie in the other. Whether a speech act is a lie or not depends not on the intrinsic properties of the act itself, given any plausible way of individuating speech acts, but on an extrinsic, relational property of the act - the relation the statement bears to other beliefs the agent possesses

Posted by: Dan Kervick | Apr 21, 2005 12:07:20 PM

Posted by: john t

Dan Kervick I know you realize this but,a] one or the other person can still be mistaken, b] one or the other person can still be intruding,as in activist,their own opinions or predjudice. A judge need not lie to perform a substitution,note the case of Harry Blackmun citing personal conscience in a capital punishment case. Although I know that the NY Times is as honest as the day is long I think I would like to know more about what Gonzalez said but for know it seems like Gonzalez is wrong even when he agrees with liberals. If Mr Macclean is not a judge just who would he have issued his dissent to by the way.

Posted by: john t | Apr 21, 2005 3:44:14 PM

Posted by: Abad man

For a different view and maybe some more information check out today's powerline entry. I am not sure how to do the link right so here is the URL http://powerlineblog.com/archives/010233.php
In her dissent Judge Owens also appearently wrote:

"The question in this case is not whether the Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes. Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court or to ignore the evidence, as it has done."

Of course this does not sound nearly as bad as "religious objections" and worries about remorse. Gosh, maybe she has a living brain. Maybe she was not being an activist Judge and was applying sound legal principles which the majority side of the decision ignored. It is hard to tell from your post or from the Powerline blog for that matter.

I think this shows the problem of trying to resolve difficult issues based on sound bite Journalism more than any philosophical issues. Words are taken out of context by both sides leaving people trying to explian themselves to an audience with a 10 second attention span.
So Mr MacLean congratualtions, you have a Gottcha moment for Mr. Gonzales, but have done little advance any understanding of the issues. But then this is not really about what is right, or true or fair so I guess understanding the issues doesn't really matter. It is about getting right thinking people, people who think like me, in the courts and keeping wrong thinking people out.

Oh and by me I mean both liberals and conservatives.

Posted by: Abad man | Apr 22, 2005 3:22:27 AM

Posted by: Dan Kervick

Here is a link to the concurring and dissenting opinions in the "Jane Doe" case at issue:

Jane Doe

Scroll down to the entries under June 22, 2000 to find it.

The issue turns on what constitutes a "sufficiently well-informed" minor under the Texas bypass statute. In overturning the lower court's decision against the bypass, the majority had found that the lower court had imposed and overly stringent and demanding interpretation on the phrase, one that was not supported by the legislative intent and history of the bypass exception.

Owen accuses the majority of inappropriately substituting its own judgment for that of the lower court with respect to a finding of fact. Yet, that seems incorrect to me, since the majority opinion is based on a rejection of the court's interpretation of a statute.

Gonzalez concurring opionion address not just Justice Hecht's dissent, as the Powerline commentary suggests, but the dissenters opinions taken together.

The full Gonzalez quote about "judicial activism" is this:

Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.

In the context of Gonzalez's opinion, where it is the suggestions of the dissenters that are under discussion, Gonzalez can reasonably be interpreted as endorsing the following statement: if the court accepted the construction of the statue suggested by the dissenting opinions, and ruled accordingly, that would constitute an unconscionable act of judicial activism.

Posted by: Dan Kervick | Apr 22, 2005 8:46:01 AM

Posted by: john t

Dan Kervick, The question of statute revolved around fact and was centered on it,that is maturity and the evidence for or against it. In effect the Supreme court overruled the trial judge and the appellate court's findings on the application of the facts,on which Owen offered substative arguments. But why bash our heads against a wall. Your last sentence lends itself to a plausible interpretation that would deprive Mr. MacLean of the philosophical speculations and reverie he looked forward to.

Posted by: john t | Apr 22, 2005 11:13:21 AM

Posted by: Dan Kervick

john t,

The opinion of the Texas Supreme Court, written by Justice O'Neill, was that Doe did not need to demonstrate her maturity. The statute in question makes it a sufficient condition for granting the the bypass that the minor be able to demonstrate that "she is mature and sufficiently well informed to make the decision to obtain an abortion without notifying a parent." But the trial court had not denied her application of the basis of a finding of her lack of maturity, but on the basis of a finding that she was not sufficiently well-informed.

The trial court's decision was upheld on appeal. The Supreme Court held that the burden was on Doe only to refute the actual findings of the court, that is in this case to refute its finding that she was not sufficiently well-informed. She was not required to prove to the Supreme Court's satisfaction that she actually was sufficiently mature as well.

Owen argued that "well-established common-law principles regarding appellate review" required the Supreme Court to recognize an "implied finding" that Doe did not meet the maturity criterion. She says:

Until today, it had been well-settled law that when a trial court makes findings of fact and conclusions of law, an appellate court must presume that the evidence supports "not only the express findings . . . but also any omitted findings which are necessary to support the judgment," unless the record does not support the judgment.

In effect, the point is that if the lower court fails to articulate an expressed finding that some proposition is true, but the truth of that proposition is necessary to support the lower court's judgment, the higher court should presume that the evidence supports the truth of that proposition. Owen uses this principle to argue that the Supreme Court is bound in this case to impute an implied finding that Doe was not mature. O'Neill, it seems to me, fairly conclusively refutes Owen's claim, pointing out that it fails even by the standard set up by her own principle, since a finding that Doe is not mature was not necessary to support the trial court's judgment. Since the statute required Doe to demonstrate that she was mature and sufficiently well-informed, then the trial court's judgment would be well-supported by a finding that she was not sufficiently well-informed alone. There is no need to read an implied finding of lack of maturity into the trial court's opinion in order to make sense of its judgment.

The opinion found that she was not "sufficiently well-informed" As I read it, this was a finding of law. There was no dispute about what she had been told, and about the level of information she displayed to the trial court in applying for the bypass. The dispute is over whether this is "sufficient" under the statute. The Court, as I read it, held that the trial and appellate courts' construal of what constitutes "sufficient" levels of information involves a reading of the law that is contrary to the legislative intent, and earlier guidance form the Supreme Court.

Posted by: Dan Kervick | Apr 22, 2005 1:26:09 PM

Posted by: D.A. Ridgely

Mr. Kervick basically nailed this case. Moreover, it is (I hope unintentionally) misleading for Mr. MacLean and the NYT to paraphrase Gonzales’ concurring opinion criticism of the dissenters’ reasoning (“would be an unconscionable act of judicial activism”) by reporting that Gonzales claimed the dissenters’ position was “an act of unconscionable judicial activism.” Well, I suppose that’s what comes from trusting the NYT as a source of news.

Even so, if we’re going to indulge in a little linguistic analysis for purposes of axe grinding, let’s be intellectually honest and remember that the subjunctive and the indicative moods have different logical import.

This is relevant because the only acts that issue from courts of appeals are the majority decisions. They are the only performative utterances, if you will, and even they are typically chock-o-block with what lawyers call dicta – commentary that is legally irrelevant in the sense that it does not specifically figure in the trial court’s job of applying the particular, applicable legal rules to the specific, weighed facts in reaching its ruling or, in the case of appellate courts, in correcting the trial court’s erroneous application of those rules. In that sense, neither concurring nor dissenting opinions are judicial acts at all.

Thus, if Mr. MacLean is genuinely interested in gaining philosophical insight for purposes of agent-centered action theory from Gonzales’ comments (and why am I somewhat skeptical that he is?), he would do well to understand that the agent in appellate courts is the controlling majority of judges acting in the issuance of their majority decision. The rest is mere commentary.

In fact, by the way, Gonzales’ concurring opinion does mention Judge Hecht but never mentions Judge Owen. Moreover, since the NYT misrepresented Gonzales’ actual concurring language, there is reason to be skeptical about its reporting of his subsequent comments.

That doesn’t get Gonzales entirely off the hook, however, assuming the NYT accurately (albeit, probably out of context) quoted him as stating “It was actually focused at me.” It would have been more intellectually honest to say that he continued to believe that a majority decision in Doe following the reasoning of Owen and the other dissenters would have been an act of judicial activism as he understands it and that, therefore, he could not have joined in any such majority decision.

Of course, Gonzales was subsequently engaging in spin control, given the equally duplicitous criticisms of Owen’s Democratic opponents. (As though they oppose judicial activism? Yeah, sure.) Of course, also, Gonzales didn’t frame his spin control in language that would pass muster under the sort of meticulous linguistic analysis Mr. MacLean’s action theorists routinely subject each other to. As Mr. Velleman might say, “Big wow.”

But there is no single, precise definition of “judicial activism” (as Mr. Herzog has labored to demonstrate), so there is no per se inconsistency in two Bush nominees disagreeing in that regard but both nonetheless being qualified to serve on the federal bench or, for that matter, as Attorney General. In short, if that’s the best Owen’s Democratic opponents can come up with, in the words of (sui generis) former President Clinton, that dog won’t hunt.

So much for the predictably flawed NYT coverage. So much, also, for Mr. MacLean’s critique. If Gonzales has an insufficient grasp of action theory, it seems the same can be said for Mr. MacLean’s grasp of the judicial process.

Posted by: D.A. Ridgely | Apr 24, 2005 9:28:53 AM

Posted by: Dan Kervick

I tend to agree with D.A. Ridgeley on the literal reading of Gonzalez’s comments.

Gonzalez can't very well be saying "the dissenting Justices are committing an act of unconscionable judicial activism". The dissenters’ position did not carry the day, and strictly speaking it makes no sense to accuse judges of judicial activism if they are not successful in putting their opinions into action. So, Gonzalez must be interpreted as saying something like "If the court were to rule as the dissenting justices would have us rule, then the court would be committing an act of unconscionable judicial activism"

Yet for Gonzalez to disown the judicial activism charge on this pedantic basis is a bit squirrelly, and it doesn’t get the dissenters off the hook, since the only thing that then prevented them from committing an act of unconscionable judicial activism is that the other justices – including Gonzalez, outvoted them.

More important, perhaps, is the observation that Gonzalez does seem to have the position of Justice Hecht uppermost in his mind when he issues his condemnation of the dissenters’ position. Still, he does explicitly include Owen among the dissenters, and condemns tendencies in their position collectively under the judicial activism charge.

Looking over some of the opinions in these Texas cases dealing with the bypass exception to the parental notification law, they strike me as remarkable for the level of open personal anatagonism, bitterness and hostility displayed by the Justices. Hecht is the chief offender, but Owen also indulges in some rather intemperate and hyperbolical criticism of the majority. And in my untrained judgment, Owen bends over backwards to find ways not to grant these bypasses by reading personal opinions about legislative intent into the law, opinions that she does not support with any documentation. I found two comments particularly troubling. Here is part of Owen's dissent in Jane Doe 1:

Doe is a senior in high school and still lives at home. Her parents provide for substantially all her needs. They recently purchased a new vehicle for her use now and when she goes to college in the fall. Although some of Doe's earnings from a part-time job help to defray the cost of insurance, Doe's parents are paying for this vehicle. Doe also contemplates that her parents will pay for her college education. When asked why she did not want to tell either of her parents that she was pregnant and intended to have an abortion, Doe testified that it would upset them because they do not "believe in abortion." A pregnant minor's desire not to upset her parents is not a basis for concluding as a matter of law that she is mature. See In re T.P., 475 N.E.2d 312, 315 (Ind. 1985). But the more telling testimony is that Doe said that she feared that her parents would no longer provide financial assistance to her if they knew that she had an abortion. She testified that she intended to tell them some day that she had an abortion "when she was ready." A reasonable inference from this testimony is that after Doe's parents have paid most of her living, transportation, and education expenses over the next few years, she will tell them the truth, when there will be fewer consequences to face. This is some evidence that Doe is not mature enough to accept responsibility for her actions or her future. She intends to continue to seek and take support from her parents in virtually all aspects of her life, but not with regard to her decision to have an abortion. The trial court could reasonably find that Doe was not mature enough to make the abortion decision without telling one of her parents.

I have already discussed the opinion of the majority, which seems correct to me, according to which Owen’s discussion of maturity is out of place, since the trial court did not issue a finding on her maturity, and imputing such an implicit finding to them is not required to make sense of their judgment.

But that point aside, Owen seems to be saying here that the very fact that Doe wants to keep her parents in the dark about her decision to have an abortion, so as not to threaten the support they give her, is by itself evidence that she does not fulfill the maturity requirement of the bypass statute. But this seems to be a sort of Catch 22 that would make it hard for almost anyone in these circumstances to fulfill that requirement, since most minors would be in a very similar position. All of them are trying to avoid parental notification. And unless they were planning on cutting ties and moving out, they would be "accepting their parents support in virtually all aspects of their lives.” So Own seems to have hit on a reading guilefully designed to guarantee that the maturity criterion is almost never fulfilled.

But Owen’s opinion also seems to require a level of "maturity" that wouldn't even be found in the case of many adults. Surely many mature adults withhold certain information from others while at the same time seeking and accepting support from those others. The fact that they do so is not evidence of immaturity. If I don’t tell my employer that I am looking into the possibility of different employment, yet I continue to draw a paycheck, does that show that I am immature?

Then there is this comment from Owen’s dissent in Jane Doe 4:

Because the Legislature has drawn a clear line as to when parental obligations of support end, neither the trial court nor this Court may properly consider whether Jane Doe 4's parents would withdraw their emotional or financial support after she turns eighteen and graduates from high school if they were notified of her intent to have an abortion while she is a minor. Jane Doe 4 has no legal entitlement to her parents' support once she reaches eighteen years of age and receives her high school diploma. Conversely, her parents would be within their legal rights to express their disapproval of her conduct by withdrawing further support once she is considered an adult. I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression of disapproval when those acts of disapproval are wholly within the parents' rights.

The statute, once again, allows a minor to avoid notifying a parent if she can meet the following disjunctive requirement: (1) she is mature and sufficiently well informed to make the decision to obtain an abortion without notifying a parent; (2) notifying a parent would not be in her best interest; or (3) notifying a parent may lead to physical, sexual, or emotional abuse of the minor.

The majority in Jane Doe 4, addressing the issue raised by the second clause of Doe’s best interest, said: "not only did [Jane Doe's] parents banish her sister from their home, but they have not spoken to her ever since. This type of potential disruption to Doe's family relationship may weigh against notifying her parents."

Owen argues that because the parents are within their rights in withdrawing their support after Doe reaches eighteen, then the court cannot “properly consider” that prospect in evaluating Doe’s best interest. But what does the one have to do with the other? If my boss, for example, is within his rights in firing me if I tell him that I despise both him and my job, that doesn’t mean that a fair, rational and dispassionate evaluation of my best interest cannot “properly consider” the effects of my telling him these things.

The plain language of the bypass law is quite liberal about the circumstances that are to trigger a bypass. The law does not defer to the right of parents to make decisions for their minor children, or elevate the preservation of parental authority or the parent-child above all other considerations. It requires the court to make a determination as to whether the minor is mature and sufficiently well-informed that they can make this decision themselves; if so they get the bypass. If the applicant fails on that requirement, the court still has to determine whether notifying the parent would not be in the minor’s best interest; and if it would not be in her best interest, she gets a bypass.

Finally, Owen’s manner of expressing her opposition the majority reading is imperious and strange. She says: “I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression of disapproval when those acts of disapproval are wholly within the parents' rights.” One might have expected her to say “the legislative record shows that such a rule of law was not intended by the legislature”, or even “I can’t believe that such a rule of law is what the legislature intended.” But instead she asserts that she, personally, can’t countenance such a rule of law.

Posted by: Dan Kervick | Apr 26, 2005 6:54:28 PM

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