Republished from http://jpm-law-chicago.com/essays/result-oriented-judging.html#_essay4bR
B. The element of scienter that distinguishes a result-oriented
decision from the other four species of judicial activism.
Kmiec argues (at 1475-76) that result-oriented judging is a “species of judicial activism [that] differs in kind from the previous four because it has a scienter element.” He defines a result-oriented decision as one where “(a) the judge has an ulterior motive for making the ruling; and (b) the decision departs from some ‘baseline’ of correctness.” Id. at 1476 (emphasis added). He notes, however, “[t[here is rarely smoking gun evidence of an ulterior motive.” Id. at 1476.
To say that a result-oriented judge acts with scienter is a dry way of declaring that the judge has deceived the intended audience—the judge has deliberately withheld information from the opinion that, if it were included, would “invite[e] strong condemnation” of the opinion by members of the bar, the bench, and the academy. The Federal Courts: Challenge and Reform, supra note 4, at 311.
Kmiec’s definition of “result-oriented judging” is based on the definition of “judicial activism” offered by Judge Diamuid O’Scannlain of the Ninth Circuit:
Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete definition. For instance, a critical consideration is the state of mind of the allegedly activist judge. Judicial activism means not the mere failure to defer to political branches or to vindicate norms of predictability and uniformity; it means only the failure to do so in order to advance another, unofficial objective.
On Judicial Activism, Open Spaces Quarterly, vol. 4, No. 1 (emphasis added).
O’Scannlain’s reference to a result-oriented decision’s “unofficial objective” echoes Posner’s definition of a result-oriented decision as one that omits to declare on the record the true grounds on which it rests. The Federal Courts: Challenge and Reform 311-12.
/s/ John P. Messina