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.