Friday, February 24, 2017
Who Speaks for the Courts? Who Should?
The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them.
I admit to being of two minds about these types of efforts. On the one hand, the third branch certainly needs good public advocates. Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified. On the other hand, standing up for the courts must be done carefully or it can become counterproductive. In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good. As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.
To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally.
First, courts often do speak on their own behalf, albeit primarily on issues related to their performance and resource requirements. The Chief Justice’s Year-End Report—really a glorified statistical report invariably wrapped in an odd piece of historical trivia and wierdly embargoed until the evening of December 31—provides an opportunity to highlight some issue of importance to the federal court system each year. Other federal judges, usually under the mantle of the Judicial Conference of the United States, testify before Congress from time to time on issues related to funding, staffing, and grants of authority. At the state level, Chief Justices commonly present a formal State of the Judiciary speech to the legislature, which addresses similar topics. Those speeches sometimes wade into political waters, as Texas Chief Justice Nathan Hecht did earlier this month when he briefly advocated for an end to that state’s partisan elections. Moreover, both state and federal court systems have public information officers and, increasingly, a presence on social media.
Individual judges also occasionally advocate for their professional interests in court. In recent years, federal judges have sued the government for having received inadequate compensation, and state judges (and judicial candidates) have sued to clarify their First Amendment rights of speech and association.
For the most part, however, American judges at every level are exceedingly cautious about speaking out on their own behalf. The ABA’s Model Code of Judicial Conduct broadly and affirmatively discourages political speech or activity. Canon 2 provides that “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” And Canon 5 states that “A judge or judicial candidate shall refrain from inappropriate political activity.” Because “impropriety” and “inappropriate political activity” are such open-ended terms, and because even nearing the line of impropriety might be damning, most judges stay far away.
This has created some difficult moments for judges, particularly at the state level. Over the past decade, several judges facing retention elections have been targeted for removal by special interest groups with widespread television advertising. In other instances, statewide initiatives designed to politicize or punish the judiciary (including, most notoriously, South Dakota’s "JAIL 4 Judges" initiative) have appeared on the ballot. But a formal response to these efforts from the judiciary is impractical and dangerous: even a cautious and thoughtful reply would be spun by its detractors. Judges have never wanted a war of words; Heaven forbid they find themselves in a war of tweets.
In these circumstances, bar associations, law professors, and various special interest or good government groups often do step in to defend the courts. Their messaging can be effective if the message is simple and clearly bipartisan or nonpartisan. For example, in 2006 an initiative in Colorado would have imposed retroactive term limits on state supreme court justices, effectively retiring five of the seven members of the bench. If passed, the initiative would have destroyed institutional knowledge, broken up a collegial court, and undermined legal predictability. A coalition of groups, led by the state bar association, drafted respected public figures from both parties to publicly oppose the effort and distilled its opposition into a simple message: "Bad Idea, Serious Consequences." The straightforward message and coalition-building worked, and the initiative failed.
Courts assuredly wish that no one would have to speak for them, but that is not the reality. Better civic education can help cool popular passions, and educational efforts are being made at the federal level, the state level, and even by Sandra Day O'Connor. In the meantime, those who support fair and impartial courts should think strategically about the timing and tenor of their advocacy, lest their protective sentiment—however sincere—simply create a new round of mudslinging.
Just curious: do you know whether Obama's repeated very public and scripted complaints/ threats about court decisions spurred discussions among these same legal academics about whether the courts can defend themselves? Or is this topic also subject to the Federalism for thee but not for me syndrome evident among some law professors?
Posted by: biff | Feb 24, 2017 3:44:55 PM
Biff, I think there was a lot of angst about Obama's comments on the part of some legal academics, some of whom are the same academics angsting over it now, but it would be fair to say a lot of people who are concerned now weren't then, though there's arguably some distinction between the two cases that Professor Wasserman has drawn here (or pointed to Keith Whittington drawing). For an example of someone who's taken the same critical line on both cases, see
Personally, I think there is no real distinction (except one in Trump's favor - Obama's comments were arguably intended to influence the outcomes of pending cases, while Trump's have largely followed decisions that he didn't like and in any event haven't really been addressed to the judiciary), that Trump has repeatedly made fair and in some cases reasoned criticisms of Judge Robart's injunction and the Ninth Circuit's order (most recently in his otherwise incoherent news conference), that his doing so is not only appropriate but preferable to whatever people would have him do instead (say he respectfully disagrees with the decisions without explaining why in any critical sort of way), and that his tweets should be read in the context of his more extended comments to the extent they can be so read, which I think they can. That said, I take the point that a very large and unsophisticated audience just sees the more inflammatory and mostly unreasoned tweets, and that they could be harmful.
Posted by: Asher Steinberg | Feb 24, 2017 5:05:53 PM
Thanks for that important post , the respectable author of the post , points out , very important and severe issue , yet ,not the heart of it , for :
The real issue , is not defense , but , education !! how to educate the public about the work of the judges and the judiciary . This is because, a layman, would perceive result of ruling, not the path, not legal methods and reasoning, this is because, it is too complicated and too hectic , yet the most important issue in law.
That is how, a perception of politically biased judges and the judiciary is built up, let alone, while sometimes it may look arbitrary decisions that they make, this is because of divergence, has to do it appears only with the result (in favor Vs. against ) but , explaining the legal reasoning , would completely change the perception , and suggest , more uniformity and conformity , over divergence .
And who would do it ?? Well, surely not lawyers, or academic scholars (for it does only enhance the perception of: partial judges, affiliated with the left wing, and the so called " mega liberals ") But:
Professional from within, in the net (Social media, mainly through blogs, where, more details can be forwarded, and comments and questions and answers can be given on spot) and there:
The defense shall consist of education, impartiality, not through general elevated words and slogans , but:
Simple explanation about principles , reasoning has to do with every specific important verdict issued .
It is not so simple , but , there is no other way ……
Posted by: El roam | Feb 24, 2017 5:29:21 PM
Posted by: YesterdayIKilledAMammoth | Feb 24, 2017 6:09:59 PM
Just further to my comment above :
Students of law ( third year ) are best candidates for managing and running such public blogs as mentioned . They would be perceived as much less partial or institutionally affiliated or whatever .And , they are typically young , and master better the digital world . Also , they master better many domains of law , since it yet fresh in their mind , while lawyers develop more expertise in one domain typically .
Posted by: El roam | Feb 24, 2017 7:39:09 PM
I'm not quite aware of these "threats" by President Obama, but perhaps the link provided by AS suggests the spin some put there.
The concern from what I can tell from people is not Trump criticizing the judges. It is the "so-called" stuff along with him citing the ethnicity or something of a judge he opposed. Obama provided extensive reasoned criticism that some found fault with. But, Trump doing that is not what is getting pushback. So, the two aren't the same.
A point is made Obama's remarks were while cases were "pending" while Trump's followed them. Not really. The cases regarding the immigration order are ongoing. The civil suit was ongoing when he made comments deemed outrageous. This is so even if specific rulings were made. As to them not being targeted to the judiciary, they were for a general audience, I guess, but wasn't Obama too doing that? And, did Trump say "I'm not talking to the judge here where I say 'so-called' judge or suggest the judge is too biased by ethnicity or whatever to neutrally decide? Sounds addressed to the judge to me.
"I take the point that a very large and unsophisticated audience just sees the more inflammatory and mostly unreasoned tweets, and that they could be harmful."
Live by this method, die by it, and the critics concerned are not just "unsophisticated," but lawyers and others. Why? Well, in significant part that this sort of thing will get more play & have more effect. As to his reasoned criticism, its unclear where all of this sort of thing is. The press conference was referenced, but one can be forgiven if it was lost in the mess there.
Posted by: Joe | Feb 24, 2017 8:36:14 PM
Members of the bar are officers of the court. I see a good argument that this creates some obligation to speak, where appropriate and justified, in defense of the courts.
Posted by: Orin Kerr | Feb 24, 2017 9:11:22 PM
In response to Orin Kerr's comment, that duty was once explicit in EC 8-6 of the Model Code: 'Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism."
Posted by: John Steele | Feb 24, 2017 10:04:01 PM
"Adjudicatory officials" awesome band name i call it
Posted by: YesterdayIKilledAMammoth | Feb 24, 2017 10:10:13 PM