I stand by my earlier post’s analysis of current Supreme Court doctrine, but my criticism of Judge Hudson begged too many questions. Whether Judge Hudson is censurable for his mis-“synthesis” of Supreme Court doctrine depends, in part, on whether it is appropriate for federal district judges to issue performative opinions – opinions aimed at making new law instead of applying current law.
There are strong democratic reasons – assuming Congress is a democratic body – for preferring that federal district judges apply the law instead of make it. Unlike Supreme Court justices – who, everybody’s contrary representations notwithstanding, are appointed in large part based on the Senate’s perception of their judicial lawmaking abilities – federal district judges are not appointed to be lawmakers. Because they have not been entrusted with legislative powers by our democratic processes, it is undemocratic for them to aim their opinions at making new laws.
On the other hand, there are consequentialist considerations in favor of lawmaking efforts at the district level (even if Hudson’s particular effort isn’t desirable). Federal district judges tend to be well-educated, which arguably correlates positively with the policies they prefer being wise. So federal district judges will tend to promote good policies, which is a powerful reason for endorsing their making new laws.
Note, though, that this is all pretty academic. My hunch is that federal district judges aren’t often in the position of being likely to influence the final, national, form of a given federal law.