Tuesday, June 30, 2020
Recently, the Seventh Circuit addressed an article that stirred up quite a bit of debate earlier this year. In March 2020, Harvard Law and Policy Review published an article by U.S. District Judge Lynn Adelman sharply criticizing the United States Supreme Court for, in his opinion, advancing the interests of the Republican party in siding with business interests over rights of the middle-class, poor, and minorities. To illustrate his position, Adelman relied on voting rights and campaign finance decisions, largely drawing from the dissents in those cases.
The article began by claiming that it is now "a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball 'umpire who [merely] calls the balls and strikes,' was a masterpiece of disingenuousness." He then compared Republican leaders to "those fervent defenders of slavery who pushed the South into Civil War."
At first, Adelman was unrepentant. "It needed to be said," was his response to the initial criticism. However, as the Seventh Circuit convened a panel to address disciplinary complains over the article, Adelman met with them and disavowed his intention to criticize the integrity of the Court, reaffirmed his commitment to impartial administration of justice, and agreed to make a public statement to that effect. This statement, plus a public admonishment, were sufficient to address the violations according to the Judicial Council's resolution.
This is not the first time a judge has been called to task for expressing opinions outside of court. Making such statements involves a tricky balance. On the one hand, judges have an intimate knowledge of the law, and their writings and opinions on the evolution and development of the law can be invaluable. On the other hand, there are a number of issues raised by the Code of Judicial Conduct for United States Judges and similar state rules that make expressing those opinions perilous.
1. Judges Should not Act (or Write) in a Manner Inconsistent With their Judicial Obligations.
The Judicial Council that reviewed Judge Adleman's work found that most of his analysis was a substantive critique of past United States Supreme Court decisions, and thus was not objectionable. This type of analysis, according to the Council, is to be encouraged, since judges have important insights into the law. However, the Council found that the opening sentences regarding Chief Justice Robert's "disingenuousness," as well as the characterizations of the Republic Party, ran afoul of Canon 4. Sort of.
Canon 4 encourages judges to engage in extrajudicial activities, such as speaking, writing, lecturing, or teaching on the law. However, in doing so, Canon 4 cautions that a judge may engage in activities that "detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below."
This broad prohibition is where the Council found an ethical violation. As the Council noted, trust in the nation's federal courts is essential to their continued vitality. Thus, "[i]f a particular judge makes statements, on the bench of off, that undermine confidence in that judge's ability to approach cases impartially, such statements impair the ability of the entire judicial system to serve the public and to engender the public's confidence in judicial decisions."
As noted, the Council found that most of the Adelman article was substantive and permissible. The statements accusing Chief Justice Roberts as being "disingenuous" in his claims of impartiality, and comparing the Republican Party to slave-owning firebrands, however, while not specifically prohibited under Canon 4, where found to be improper because they "do not promote public confidence in the integrity and impartiality of the judiciary."
This language more closely mirrors Canons 1 and 2 than Canon 4. Canon 1 provides that "a judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved." Similarly, Canon 2 provides that "[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Council thus seems to be reading Canon 4's restrictions on extrajudicial activity with Canon 1 and 2's broad requirements to preserve the integrity and independence of the judiciary.
Taken this way, Canon 4 has very broad implications. It is appropriate, under this reasoning, to write in substantive disagreement with a court decision. But it is not appropriate to do so in a way that undermines the integrity, impartiality, or independence of the deciding court. You can hate the sin, but not the sinner.
2. Judges Should not Engage in Politics.
Canon 5 states quite broadly that judges should not engage in politics. They cannot act as a leader in a political organization, endorse any political candidate, make speeches for a candidate or political organization, solicit funds for or contribute to any candidate or political organization, or "engage in another other political activity."
The Council considered Adelman's activities under this Canon because of his characterizations of the Republican Party. However, the Council concluded that, while his statements were in violation of his duties to uphold the confidence and impartiality of the judiciary, and could reflect adversely on his own impartiality, they were not political statements.
A broad reading of Canon 5 is probably unwise. Politics underlay appointments, and on the state level, many judges are required to run on party-line tickets. As long as they remain impartial in their decisions and stay out of politics as much as their system allows, however, Canon 5 should not be called into play. It was likely enough to note that Adelman's impartiality was called into question without characterizing it as a political endorsement.
Indeed, many schools of constitutional interpretation have been adopted by one political party over another. It would be perilous to suggest that endorsing one school of interpretation over another could be prohibited political speech, simply because that school has become associated with a given party.
3. Judges Should not Comment on Pending or Impending Proceedings
The most obvious prohibition on judges expressing opinions outside of court arises under Canon 3A(6) of the Code. That section of the code provides that "[a] judge should not make public comment on the merits of a matter pending or impending in any court." Certainly, a judge with a matter pending before their own court must be cautious in discussing the matter. But the Canon also requires caution when discussing issues pending in other courts, or that are "impending" elsewhere.
In 1999, Justice Posner published a book entitled, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. In that book, Posner expressed his belief that President Clinton had committed perjury, and could well be prosecuted for wire fraud, criminal contempt, making false statements, and aiding and abetting a crime.
This book was quite popular, but it also drew criticism under Canon 3A(6). At the time the book was published, there was an ongoing criminal investigation for charges of perjury and obstruction - the very issues addressed by Posner - as well as proceedings to revoke Clinton's law license.
U.S. scholars debated the application of the Canon and the appropriateness of Posner's comments for quite some time. To my knowledge, no grievances were ever brought before the Judicial Council on the matter.
Similarly, Lord Steyn, a member of what was then the highest court in the U.K. caused consternation when he wrote about Pepper (Inspector of Taxes) v. Hart, a 1993 decision regarding the construction of statutes. At first, Steyn (who did not sit for the decision) praised the reasoning of the case. Over time, however, Steyn, while still on the bench, wrote that the decision "is not good law," and then proceeding to lay out what he believed should be a successful attack against the case.
As some authors have noted, this analysis of a legal issue that was likely to come before the high court again essentially signaled a prejudgment or "signalling" by one of the members of that court. This was exacerbated when another member of the court endorsed his reasoning. See Susan Bartie and John Gava, Some Problems with Extrajudicial Writing, 34 Sydney Law Rev. 638.
Their are several concerns with this type of writing. Prominent justices like Posner may influence proceedings outside of their courts. And Lord Steyn's writings influenced other members of the bench, signaled arguments that would be influential, and essentially served as non-official opinions. Broad topics are probably much safer to discuss than narrower holdings of specific cases or potential cases.
4. Judges Should Exercise their First Amendment Rights.
In the end, judges should be encouraged to exercise their rights and discuss the law in a way that helps the rest of us benefit from their experience. Sometimes, that will mean criticizing the legal work of other judges. However, as the Council noted, judges who criticize decisions should do so in a way that does not interfere with public trust, and the public perception that the judges they appear before will approach their cases fairly and impartially. Hopefully, by keeping the above Canons and rules in mind, judges can help the public engage in important discussion about the law without making those discussions personal or political.
(image credit - untitled political cartoon by Clifford Berryman from the 1930s)