Sunday, July 13, 2014

On judicial creativity

William K. Suter
A new essay from the Hoover Institute argues that bad results follow when judges venture beyond interpreting the law in order to help sympathetic litigants.

An example offered in support of this thesis is United States v. Denedo (2009), where the Supreme Court agreed with the Court of Appeals for the Armed Forces (CAAF) that military appellate courts enjoy the power to consider writs of coram nobis even though such power has never been conferred by statute. It appears that the courts "stretched the law to throw him [Mr. Denedo, who faced deportation] a lifeline."

The author is the recently retired Clerk of the U.S. Supreme Court and a retired Army JAG Major General.

1 comment:

  1. I regret to say that I am baffled by General Suter's comments on the Denedo case. I was co-counsel for Petty Officer Denedo. This was hardly a case of creativity or making up new doctrine concerning the UCMJ's finality provision. The Court itself, as well as the Defense Department and CMA/CAAF, had years before recognized that Article 76, UCMJ, does not bar coram nobis petitions. Readers who harbor any doubt whatever in this regard should read pp. 38-57 of Petty Officer Denedo's brief on the merits. This was not a case of allowing sympathy to cloud the Justices' legal views.


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