An Independent Judiciary That Plays For One Team

People tend to believe that America’s judiciary is an independent one. Earlier this week, for example, a man named Rick McIntyre from Billings, Montana, wrote this letter to the editor to his local media outlet, the Billings Gazette, expressing his opposition to Senate Bill No. 200, a proposed law in Montana that would allow, but not require, “[a] candidate for judicial office [to] indicate the candidate’s political party affiliation on the candidate’s declaration for nomination.”

“What will become of truly impartial judges if SB 200 becomes law?” Mr. McIntyre asks. “It is likely that no sitting judge agrees with either major political party completely.”

I don’t really disagree with Mr. McIntyre’s point. After all, I think his point — “that no sitting judge agrees with either major political party completely” — is probably as true about judges as it is about anyone.

But for Mr. McIntyre, independence from politics isn’t simply something judges should stride for. To him, it’s actually something that he and his 336 million (ish) fellow Americans deserve. “As an American,” he explains, “I’m guaranteed an independent judiciary to decide some of the most important issues I might face.”

Is Mr. McIntyre right? I don’t really know. I do know, however, that I read cases every single day where this supposedly independent judiciary is willing to do things for the government that it’s not willing to do for anyone else. Two I read earlier this week illustrate this reality perfectly.

In one case, the government “failed to address the issue that [the moving party’s] motion raise[d.]” But a federal judge created and accepted an argument for the government — even though the judge “ha[d] not received any documentation from the BOP[.]”

On the surface, the recent decision from U.S. District Judge Sara Lioi in United States v. Calabrese is a pretty unremarkable one. In that decision, the federal judge in Ohio ruled that the First Step Act does not authorize the BOP to apply FSA Time Credits to a term of supervised release.

Some judges agree with Judge Lioi on this point on a regular basis. Others do the exact opposite. Which judges are right and which judges are wrong really isn’t the point of this article. Instead, the point of this article focuses on what argument the government made that Judge Lioi agreed with — or, perhaps more accurately, what argument the government didn’t make.

In the first paragraph of her decision, Judge Lioi first recognized the motion before her: “Defendant Anthony O. Calabrese, III (‘Calabrese’) moves this Court to apply time credits that he earned pursuant to the First Step Act (‘FSA’) to reduce his remaining term of supervised release.” Then she described the government’s response, in full, as follows: “Plaintiff United States of America (the ‘government’) filed a response (Doc. No. 154 (Response)), but it failed to address the issue that Calabrese’s motion raises: can this Court apply Calabrese’s unused FSA time credits to reduce his term of supervised release?” (Footnote omitted.)

The government didn’t only “fail[] to address the issue that [the] motion raise[d]” though. Instead, according to Judge Lioi, she “ha[d] not received any documentation from the BOP” either. This left Judge Lioi with no relevant argument from the BOP and no documentation to support its (unbriefed) position.

But, for Judge Lioi, the lack of argument and documentation didn’t make a difference. She created the government’s argument for it and, ultimately, accepted that argument and denied Mr. Calabrese’s motion.

In another case, however, no one could find a federal judge willing to create and accept arguments when a man released from prison two years late “inadequately briefed” the issue of whether the failure to release him on time was “objectively unreasonable.”

In theory, Judge Lioi’s actions in United States v. Calabrese aren’t really significant. I think most of us probably like the idea of judges reaching the legally correct decision in cases regardless of the adequacy of the parties’ arguments. As we saw in the U.S. Court of Appeals for the Fifth Circuit’s decision in Taylor v. LeBlanc issued on the same day, however, the willingness of judges to create and accept arguments for a party usually doesn’t exist when the proverbial shoe is on the other foot.

The Fifth Circuit’s decision in Taylor v. LeBlanc arose out of a growing list of cases based on Louisiana’s prison officials refusing to release people from prisons after they’ve completed their sentences. You read that correctly. Indeed, according to the Fifth Circuit itself, “the Louisiana Department of Public Safety and Corrections has identified and exposed a pattern of Louisiana inmates being detained past the expiration of their sentences.”

Percy Taylor was one of those prisoners who Louisiana detained even though his sentence expired. Don’t take my word for it. Take the Fifth Circuit’s word for it instead: “Percy Taylor was detained beyond the expiration of his sentence.”

So, Mr. Taylor filed a lawsuit under 42 U.S.C. § 1983. But Department Secretary James LeBlanc sought protection from the judge-created doctrine of qualified immunity, arguing that detaining Mr. Taylor beyond his sentence “wasn’t objectively unreasonable in light of clearly established law.”

According to Louisiana Department of Public Safety and Corrections Secretary James LeBlanc, detaining people after the expiration of their sentences with no legal basis is not something that is “objectively unreasonable in light of clearly established law.”

Thankfully, the Fifth Circuit didn’t buy that argument, unequivocally holding that “[t]he right to timely release is clearly established.” But the Fifth Circuit still didn’t rule in Mr. Taylor’s favor. Rather than allowing his case to move forward, Judge James C. Ho, writing for the majority, essentially ordered the dismissal of Mr. Taylor’s suit. Its reason for doing so? Mr. Taylor’s brief wasn’t good enough.

“The right to timely release is clearly established,” Judge Ho wrote. “But Taylor failed to adequately brief — and has thus forfeited — any meritorious argument that Secretary LeBlanc’s behavior was objectively unreasonable in light of that right. Accordingly, we must reverse.”

As the Fifth Circuit recognized, Mr. Taylor had to satisfy two prongs for his case to move forward. First, he had to show that “the defendant violated [his] constitutional rights.” Second, he had to show that “the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” There was no doubt as to either prong.

First, as Judge Ho wrote in his opinion, the ” ‘[d]etention of a prisoner … beyond the expiration of his sentence in the absence of a facially valid court order or warrant constitutes a deprivation of due process.’ ” Second, as Judge Ho also wrote, “[i]t is clearly established that inmates have the right to timely release from prison consistent with the terms of their sentences.”

Even though courts had “clearly established that inmates have the right to timely release from prison consistent with the terms of their sentences,” Mr. Taylor still couldn’t recover because he confused questions of fact and law and relied on a “conclusory” argument.

But the Fifth Circuit ignored the undisputed nature of both prongs and ruled in the government official’s favor anyway, holding that Mr. Taylor “inadequately briefed” the issue he raised. The Fifth Circuit’s decision in this regard was based on two flaws in Mr. Taylor’s argument.

First, Judge Ho wrote, Mr. Taylor “argue[d] that whether Secretary LeBlanc acted objectively unreasonable is a fact question not amenable to appellate review at this stage in the proceedings.” But because the Fifth Circuit treats the application of qualified immunity as a question of law, not a question of fact, Judge Ho said, this argument lacked merit.

Then, turning to Mr. Taylor’s substantive argument, Judge Ho deemed his argument “on the merits” “inadequately briefed.” Specifically, Judge Ho explained as follows: “Taylor’s entire presentation on the issue of objective unreasonableness amounts to just this single conclusory statement: ‘It is inherently unreasonable for the secretary … to fail to enact policies and procedures to ensure the prompt release of inmates who have served their sentences in accordance to law.’ A single, unsupported sentence isn’t enough to adequately brief the issue.”

Because Mr. Taylor didn’t “adequately brief the issue,” the Fifth Circuit reversed the lower court’s decision and sent the case back for dismissal. In other words, Mr. Taylor is simply out of luck and can’t sue anyone for holding him in prison after his sentence ended.

If the judge didn’t need the government to address the issue or provide documentation to rule in its favor in United States v. Calabrese, why did the judges in Taylor v. LeBlanc rule against a man simply because he inadequately briefed an issue? Because they can.

So, what’s the difference? Why, in United States v. Calabrese, did it not matter that the government “failed to address the issue … raise[d]” in the case? Why did it not matter that the judge “ha[d] not received any documentation from the BOP” to support its position? How come neither of those things matter in United States v. Calabrese but Mr. Taylor’s purported failure to “adequately brief the issue” in Taylor v. LeBlanc meant the end of his lawsuit?

There really is no difference between the two cases. Like Judge Lioi in United States v. Calabrese, the Fifth Circuit could have easily ignored any perceived shortcomings in the quality of Mr. Taylor’s argument and reached the correct substantive outcome if it wanted to. Judge Lioi wanted to do that in United States v. Calabrese, so she did. The Fifth Circuit didn’t want to do it in Taylor v. LeBlanc, so it didn’t. In other words, when it comes to issues like this, the judges can simply do whatever they want.

Mr. McIntyre wanted a judiciary independent from politics. But what about one independent from the government? What about one that treats someone’s failure to “adequately brief the issue” in one case the same as it treats the government’s “fail[ure] to address the issue … raise[d]” in another? For now, it’s clear we don’t have that.