The case of the day is Defense for Children International—Palestine v. Biden (N.D. Cal. 2024). Something I’ve seen very often in courtrooms, and read in a lot of decisions, is a tendency for many judges, when they are about to rule against a party, to express a lot of sympathy for the equities on the that party’s side of the case. Of course, I understand why judges sometimes do this. They’re human beings, they know their decisions are about to disappoint someone who has come to them for justice, they don’t want to appear to be coldhearted. I’ve written about a genre of cases where this happens pretty often: the elephant habeas cases. Of course, in those cases, the rationale is a little funky, because surely the elephants aren’t disappointed by the ruling, and I am not sure why the judges are keen to be so sensitive to the tender feelings of the “elephants are people” people. But anyway, those decisions will typically say something like, “elephants are magnificent, intelligent animals, and often they aren’t cared for particularly well,” etc. On the one hand, the judges don’t want to be seen as monsters who who don’t love elephants. On the other hand, they know what the right decision is, and they don’t want to end up like the judge in Miracle on 34th Street, whose political fixer persuades him that he has to declare that Kris Kringle is the real Santa Claus so as not to disappoint the children of New York. So they write a lot of dicta. The twist is that the lawyer bringing the case doesn’t necessarily expect to win the case. He counts on getting sympathetic quotes from the judge who dismisses the case on the obvious grounds that elephants are not people , so that he can include those quotes in the next petition. That happens in the elephant cases as the lawyers move from state to state.
We see that dynamic in today’s case. The plaintiffs allege that the US government and government officials are violating duties under the Genocide Convention by supporting Israel’s war against Hamas in Gaza. They sought an order enjoining further military or financial support. The claim is obviously nonjusticiable. The lawyers who filed it likely knew that. But in today’s decision they got what it seems to me they likely wanted, a judge’s musings about genocide, formed without the benefit of an adversarial presentation of the evidence (the judge heard from eight witnesses for the plaintiffs, though I can’t tell if they were cross-examined), and with the apology that the judge would have liked to grant the preliminary injunction if only he could. He called the case “the most difficult judicial decision that I’ve ever made,” which can’t be true if the question was what was the right answer but which might be true if the judge wanted to emphasize his empathy with the plight of the Palestinians in Gaza suffering on account of the war.
There are different philosophies of judging. I’m not a judge and so I suppose I don’t have to have a clear philosophy of judging myself. But in my mind the best judges decide what they have to decide and do not decide what they don’t have to decide. And (again, in my mind) the best judges don’t hold pointless evidentiary hearings, because the purpose of an evidentiary hearing is not to provide catharsis but to hear evidence that will help the judge decide the dispute. Everyone has a right to have their case heard, and here what that means is that the plaintiffs had a right to file their complaint and to try to explain to the judge why the court had jurisdiction to hear the case, something that of course they could not do. And of course they have a right to appeal. But when it is clear that a court lacks jurisdiction, holding the kind of evidentiary hearing the judge held and writing the kind of dicta he wrote in this case maybe served the purpose of making the judge feel better about his decision or how it would be perceived, or maybe served the purpose of making people whose families are affected by the war feel “heard” in way they might not otherwise feel. But it wasn’t really about the law.