Judge Wilkinson and the Irony of "Judicial Restraint" in <i>Al-Shimari</i>

Whatever else one might say about Fourth Circuit Judge J. Harvie Wilkinson III, I think it's safe to describe him as one of the leading contemporary advocates of judicial restraint on the federal appellate bench. After all, it was the same noted conservative jurist who raised many eyebrows in 2009 when he attacked the conservative majority of the Supreme Court for its Second Amendment decision in Heller v. District of Columbia, writing in the Virginia Law Review that Heller may one day become the conservatives' Roe v. Wade--a landmark case in which the Justices mistook their ideological policy preferences for their more modest judicial obligations. And it was Judge Wilkinson who wrote the Fourth Circuit's opinion earlier this year in Lebron v. Rumsfeld, which repeatedly argued for the need for judicial restraint in national security cases (there, as justification for not recognizing a Bivens remedy arising out of Jose Padilla's allegedly unlawful detention and treatment)... That's why I found his opinion dissenting from today's en banc Fourth Circuit decision in al-Shimari v. CACI International to be profoundly ironic--if not hypocritical--as I explain below the fold. In his sharply worded 41-page dissent, Judge Wilkinson sets forth a lucid, coherent, and at times compelling series of arguments for why federal military contractors should not be subject to liability under state tort law. Lest there be any doubt, I think there is much to commend his analysis, at least as a policy matter. Indeed, I don't think it matters whether one is a progressive or a conservative, a hawk or a dove, to believe that, all things being equal, federal--rather than state--law should govern federal national security policy, especially with respect to operations overseas. The problems with Judge Wilkinson's opinion are twofold: First, because no federal law imposes liability in these cases, favoring a federal rule of decision over state law is tantamount to conferring entirely judge-made immunity upon the defendants. Second, in order to get there, he has to engage in two distinct acts of judicial lawmaking for which he is entirely unapologetic: (1) Asserting jurisdiction over an appeal where none exists (as I've explained in some detail before); and then (2) using a series of prudential and policy arguments to justify wholly judicial displacement of state tort law. Whatever else one might say about the merits of each of these two steps, I don't think either can possibly be defended as "judicial restraint." Indeed, this strikes me as absolutely archetypal judicial lawmaking. Again, that's not to condone or condemn it; it's merely to describe it. The better question, methinks, is what justifies such judicial lawmaking in the typical national security case? Presumably, it's a healthy respect for (and deference to) the role of the political branches in general, and the Executive Branch in particular, in such sensitive questions of national security policy and foreign relations. And that's why Judge Wilkinson's dissent is so ironic in this case, because the Obama Administration filed an amicus brief explaining in detail why it is entirely consistent with Executive Branch policy concerns to allow these suits to at least proceed to discovery and summary judgment. Judge Wilkinson remained unconvinced, noting at one point that "The principle against such interference holds even where the executive branch insists that the state law does not interfere with the foreign relations power." In other words, judges are allowed to decide for themselves when state laws interfere with federal policy, even when the Executive Branch officials responsible for articulation of that policy specifically disclaim the existence of such a conflict. Thus, Judge Wilkinson believes that courts must sometimes (1) exercise appellate jurisdiction where none exists so that they may (2) recognize principles of judge-made federal common law that displace state tort law and immunize private defendants in order to (3) protect the federal government's interests, and thereby (4) ignore the fact that the federal government itself supports liability. Reasonable people can surely agree to disagree about many aspects of the al-Shimari litigation. But can we please drop the fiction that what jurists like Judge Wilkinson are doing is "judicial restraint"? It may be "restraint" insofar as it is restraining liability, but only through conscious and repeated lawmaking by judges. And if we're comfortable with it here, mustn't we necessarily also (1) be comfortable with it in other areas, as well, or (2) have a theory for why permissible judicial lawmaking is, at least with respect to civil liability, unidirectional?