Wednesday, October 31, 2007, 8:19 PM

Fourth Circuit: We're Not Philosopher-Kings Or Legislative Aides

Earlier this week the Fourth Circuit issued a "mootness" decision, dismissing as moot an appeal by an inmate who brought a First Amendment challenge to the South Carolina Department of Correction's alleged policy of barring inmates in the maximum security unit (MSU) from receiving publications by mail. The case is Incumaa v. Ozmint.

The inmate, represented by Arnold & Porter, had been transferred out of the MSU two years earlier, and because he won't return there unless he engages in bad behavior, the MSU publications policy no longer applies to him and may never apply to him again. While his current unit has a similar publications policy, it's not identical to the MSU policy; because his complaint challenged only the MSU policy, he could not challenge either policy in this case.

The Fourth Circuit's opinion, written by Chief Judge Karen Williams, ended with this observation: "Federal courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law or merely giving advice about the potential legal deficiencies of a law or policy when no ongoing controversy exists with respect to that law or policy."

Hmm. No philosopher-kings pontificating about abstractions in the law? Tell that to the U.S. Supreme Court!

The Court's last line about "giving advice about the potential legal deficiencies of a law" is particularly interesting, coming as it does one week after Justice Ginsburg delivered a lecture on the role of dissenting opinions. In her lecture she discussed her Ledbetter dissent last Term, which she read from the bench. (Ledbetter involved the statute of limitations under Title VII.) In her lecture she described this "genre of dissent" as "one aiming to attract immediate public attention and to propel legislative change." She gloated that several members of Congress "responded within days" with proposed legislation, and she acknowledged that "[t]he response was just what I contemplated when I wrote [my dissent.]" (For a critique of Justice Ginsburg's attempt to influence legislation, see Orrin Kerr's article in the Wall St. Journal here.)


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