It’s been quite the week for judges using and abusing dictionaries! It all started when Sam Alito fired off an op-Ed for the Wall Street Journal explaining why billionaires flying him to luxury resorts wasn’t covered by federal disclosure law with a cherry-picking expedition through Webster’s and the Black’s Law Dictionary as opposed to… the definitions in the regs and laws. Then Clarence Thomas mused that the trust doctrine governing Indian law might really mean that they’ve really got faith in the federal government as opposed to a, you know, legal trust. Now the Eleventh Circuit has closed the book on one of the most embarrassing attempts at “textualism” ever committed to writing.
You might remember when Kathryn Mizelle, a Trump-appointed district judge in Florida who was working as a Biglaw associate before taking the bench, scored her MAGA bona fides by ending the tyranny of the Biden mask mandate on planes and trains!
How did she reason that one out based on the law? Well, let’s just say there’s a reason the ABA deemed her unqualified for the federal bench.
Citing random dictionaries from the 1940s, Judge Mizelle produced an opinion that described at the time as textualism ad absurdum. From our earlier coverage:
She’s just decided that two different meanings of “making things clean” are necessarily exclusionary and then arbitrarily chose the one that helps her outcome, declaring it the obvious meaning. Her reasoning is that the Centers for Disease Control was never intended to, for example, tell hospitals to stay clean, only to regulate what soap they have to use to clean up after the fact. This is, of course, idiotic.
And the Eleventh Circuit seems to agree! Though technically ditching the case by citing mootness.
And while it is now moot, despite the court’s phrasing, it didn’t really need to vacate the lower court opinion as much as deny the appeal as moot. It went that extra mile to keep the books sanitized of a reverse-engineered opinion that obliterated public health law to appease anti-maskers and COVID denialists. As the Georgetown Law embedded tweet notes, because she couldn’t find a rationale to strike down the mandate without blowing up the whole law, she chose the latter and scared the ever living hell out of public health officials.
At least that mistake is erased for now. But don’t worry, I suspect our intrepid baby judge will deliver another botch job soon enough.
Earlier: Mask Mandate Struck Down Because ‘Sanitation’ Doesn’t Mean ‘Keeping Things Clean’ For… Reasons
Sam Alito Laments It’s Getting So You Can’t Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore
Clarence Thomas Just Wrote The Dumbest Paragraph In The History Of Indian Law
Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.