Legal Affairs
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Sounding Off

Judges should have the right not to remain silent.

By Emily Bazelon

In Narrowing the Nation's Power: The Supreme Court Sides With the States, John T. Noonan Jr. picks apart the Rehnquist Court's recent state sovereignty decisions. There are the cases, for example, that say state workers can't win damages when they sue their employers for age- or disability-based discrimination, because Congress can't make the states obey certain federal laws. Noonan's viewpoint is surprising because he has voiced opinions consistent with those of the Court's conservative majority on issues like abortion and assisted suicide, and because Ronald Reagan appointed him to his current job. But what really makes Narrowing the Nation's Power a "startling critique," as New York Times reporter Linda Greenhouse put it, is that Noonan is a judge—a senior member of the federal appeals court for the Ninth Circuit.

As a commentator who sits on the bench, he's in the company of Richard A. Posner of the Seventh Circuit, who drew censure for writing critically about the Clinton impeachment and defensively about Bush v. Gore. Both judges have dared to take on highly charged issues of law when those issues have yet to be resolved. Their books raise an important ethical question: When should judges keep quiet about public matters, and when should they speak out?

The idea that judges should keep their opinions to themselves originates in the view that judges must be Olympian, separate from and above the rest of us. Judges have a special role to play in our democracy; they decide when others have messed up or been messed with, and when the other branches of government have stepped out of line. If we don't want judges popping up on Nightline to weigh in on the latest legal controversy, it's because we don't want anything to disturb our image of them as black-robed and aloof. Keeping judges at a distance from the rest of us makes it easier to hope that they're also less fallible.

This belief is expressed in the Code of Judicial Conduct—written by the American Bar Association to regulate judges' behavior and adopted by Congress and all of the states—which warns judges not to do anything that could create an "appearance of impropriety." Specifically, the code says that judges shouldn't comment on the merits of any "pending or impending" cases. By custom, they're also not allowed to talk about their past opinions, which are supposed to speak for themselves.

When judges break these rules, they can be reprimanded. Federal law and most state laws also provide that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." If a judge doesn't take herself off such a case, an appeals court can do it for her.

The Judicial Code dates from 1924, and its standards are familiar enough. What's surprising is how often judges—including many with Olympian reputations—have sounded off about legal questions and controversies. Consider the Supreme talkers of the last couple of generations. Thurgood Marshall denounced Supreme Court decisions restricting prisoners' rights. Warren Burger advocated for prison reform, appearing on Nightline and taking an influential group of Americans to visit Scandinavian prisons. Harry Blackmun discussed the opinion he wrote in favor of abortion rights in Roe v. Wade. Lewis Powell expressed regrets about having cast the swing vote in Bowers v. Hardwick, the decision that upheld the prosecution of a gay man under Georgia's sodomy law. Sandra Day O'Connor, a swing vote in many death-penalty cases, made news when she said that innocent people were likely being executed and questioned whether poor defendants were getting decent representation from court-appointed lawyers.

So what happened to the judicial code? One answer is that the rules allow for all of these examples. These judges weren't signaling how they'd vote in a specific future case. They were expressing views more generally about developing areas of the law. As Justice Antonin Scalia wrote in an opinion last summer, "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and for good reason."

At the same time, by taking sides in a fraught debate, a judge could be said to violate the code by creating in some people's eyes an appearance of impropriety, given the roomy meaning of that phrase. If you're the lawyer for a state trying to win an extension of the recent Supreme Court sovereignty decisions—arguing, say, that the states aren't subject to the federal law guaranteeing workers unpaid leave to take care of sick relatives or newborn or adopted babies—you might, after reading Noonan's book, be concerned to learn that he's on the panel of judges who will hear your appeal. You might even ask him to disqualify himself.

Yet we are better off for hearing what Marshall and Blackmun, Burger and O'Connor, have had to say. Sometimes, judges can tell us things that law professors and other commentators can't. Noonan's book provides a good example. The Supreme Court decisions that he attacks are written in difficult, if not impenetrable, legalese. Their significance isn't immediately (or even not so immediately) grasped. These are the sort of opinions that make law students gulp down coffee—the sort that go unread, and unthought about, by just about everyone else.

Noonan's analysis cuts an explanatory path through this thicket of law. It shows how the court's majority has dramatically shifted power from Congress to the states and, more strikingly, to the five conservative justices who dominate the Court. "No defensible theory of the Constitution justifies the justices preferring their hunch to the work of the legislators," Noonan writes. "Judicial restraint is abandoned when they do." The conservative majority asserts that the Eleventh Amendment limits individuals' rights to sue the states. As a fellow conservative, Noonan is especially credible in showing that this claim isn't based on the Constitution's text and so belies the majority's insistence in other circumstances on strictly literalist interpretation. And he calls attention to the court's seeming indifference to the effect of its decisions on individuals, asking, "Do decisions that leave the elderly and the disabled with inadequate remedies for unequal treatment establish justice?" There's been plenty of law-review criticism of this line of Supreme Court cases. But little of it is as readable as Noonan's is most of the time. And none of it carries the same authority.

By publishing Narrowing the Nation's Power, Noonan has put himself forward as a public intellectual, one who's well positioned to add to public debate because he has judicial experience that most of us lack. He knows that by speaking out against the Supreme Court as a sitting judge he's climbing down from Olympus, and he explains why, suggesting that other lawyers and judges have similar obligations. "It is the duty of lawyers," he writes, "to work for the reform of the law. It is their duty because lawyers best know its imperfections. Lawyers do not cease to have this duty when they become judges."

Posner also offered an explanation for writing his book about Clinton, An Affair of State. The judge was prompted to defend himself by the legal scholar Ronald Dworkin, who asserted in The New York Review of Books that Posner was guilty of bad ethics. Dworkin argued that the judge's sin was a matter of timing. While Posner waited to publish until the House of Representatives completed its impeach- ment proceedings, his book appeared when prosecutors were still considering whether to charge the president with perjury. Dworkin contended that the rule barring judicial comment on pending cases should be understood to include "any possible future prosecution that has been publicly debated among politicians and officials and often mentioned in the press, particularly when the judge is prominent and his statements are likely to receive wide circulation."

In a spirited letters debate, Posner and Dworkin duked it out. The pair wrestled over the dictionary meaning of an impending case (Is it one that's imminent, or one that's threatening?) before moving on to more substantive questions. Dworkin's argument about the unethical timing of Posner's book has technical merit—since Clinton could have been prosecuted when the book was for sale, Posner was theoretically on the wrong side of the rule that restricts him from talking about any pending case. But the case against Clinton would never have come to Posner's courtroom, and it's hard to take seriously the concern that An Affair of State could have influenced the decision about whether to prosecute in any significant way. Unless you're a hard-core Olympian, then, Posner wins hands down.

We can use a more First Amendment-friendly standard than Dworkin's to determine when judicial speech crosses an ethical line. Judges should be discouraged from speaking only when what they say gives them a personal stake in the outcome of a case before them or on its way to their courtroom.

That standard might help bolster the rules now in place. Telling judges to avoid the appearance of impropriety is the kind of vague, know-it-when-you-see-it directive that inevitably makes many of them more cautious than they should be. That's the wrong side to err on if more speech is better than less, as American law generally assumes. But what's most appealing about a standard based on a judge's stake in a case is that it gets closer to the meaning of impartiality as it matters most for the bench.

We don't regard judges as impartial simply because they haven't said ahead of time what they think about a case or a matter of law. Lawyers judge-shop when they are deciding where to file a case, and the rest of us handicap the votes in pending Supreme Court decisions, because we know that some judges are more disposed to favor one view over another. Judges have track records. Marshall and fellow Justice William Brennan, for example, voted against every execution that came before them long after a majority of the court decided that the death penalty was constitutional. Their unusual refusal to abide by precedent understandably outraged death penalty proponents.

Still, we want judges to be like umpires, to call a pitch only after the ball crosses the plate. Who knows: The usually liberal Justice Stephen Breyer may surprise us and cast the swing vote to increase the power of public schools to make students take random drug tests, as happened last term. What's most important is to preserve the principle that a judge comes to each case with an open mind.

When a judge becomes a player rather than an umpire, we lose that assurance. The most obvious offender is the judge who signals bias against a litigant before him. That's why Judge Thomas Penfield Jackson was thrown off the Microsoft antitrust case last year for trashing the company to reporters. Jackson questioned Microsoft's claim that it should be allowed to integrate a Web browser into its Windows software. He also said that Bill Gates's testimony was "inherently without credibility." And he mused about punishing Gates by making him write a book report on Napoleon, saying that the Microsoft founder "has a Napoleonic concept of himself and his company, an arrogance that derives from power."

No wonder the judges of the D.C. Circuit who heard Microsoft's appeal thought the company had good reason to doubt Jackson's fairness. The articles quoting Jackson didn't appear until after he'd ordered Microsoft's break-up, but that didn't much matter, since a case is ongoing—and likely to be returned to the trial judge for further proceedings—as long as it's being appealed. The D.C. Circuit called Jackson's violations of the judiciary's ethical precepts "egregious and flagrant." And they traded him in for a new trial judge.

A little less obvious, but still correct, was the Tenth Circuit's 1993 decision to disqualify Judge Patrick F. Kelly from a case involving five defendants who'd violated an order he'd issued limiting protest outside an abortion clinic. Before the protestors went on trial, Kelly appeared on "Nightline" and told Barbara Walters that "these people are breaking the law." Kelly didn't say anything flagrant or egregious or reveal personal antipathy toward the defendants. The point of his TV appearance was to make the protesters understand that his order would be enforced, as he later explained in court. Yet it is sheriffs, not judges, who should go on television to warn about the risk of defying a court order. By acting like a law enforcer instead of a judge, Kelly made himself an "active participant" instead of a "detached adjudicator," as the Tenth Circuit explained when it granted the defendants a new trial.

Judges can also become active participants—and go wrong—by injecting themselves into a debate over a proposal for new legislation. In 1991, Chief Justice William Rehnquist led the Judicial Conference (the official policymaking group for the federal courts) in opposing the Violence Against Women Act, which was designed to give women a means to sue their attackers in federal court. Rehnquist said the proposed legislation "could involve the federal courts in a whole host of domestic relations disputes." Seven years later, after Congress passed VAWA, Rehnquist said in a speech at the American Law Institute that the law and others like it inappropriately expanded the reach of the federal courts and, in doing so, contradicted "the traditional principles of federalism that have guided this country throughout its existence."

As Judith Resnik, an expert on the federal courts and on women's rights, has pointed out, it wasn't exactly a surprise when Rehnquist wrote the decision—based on a 5-4 vote—that struck down VAWA as unconstitutional in 2000. The defense of the chief justice's off-the-bench preview, and of his decision not to disqualify himself from sitting on the case, is that his comments were about a matter of judicial administration. Rehnquist, one could argue, was talking about whether Congress would be wise to add to the workload of the federal courts by giving them a new civil rights remedy to enforce, not about the underlying merits of the law. But what really matters is the stake that Rehnquist's outspoken opposition gave him in VAWA's demise.

Campaign statements by candidates for elected judgeships carry similar risk, even when they're not explicit promises to decide a case in a certain way. A judge running for re-election who boasts that he's never failed to affirm a rape conviction has an interest in maintaining his record by also ruling against the next rape defendant who comes before him. A lot of states have broadly restricted this kind of speech, barring candidates from announcing their views "on disputed and political issues." Or they did until last June, when the Supreme Court said that such a law in Minnesota was at odds with the First Amendment, in a case called Republican Party of Minnesota v. White.

Scalia's opinion, for a majority of five, hinges on his definition of impartiality as "lack of bias for or against either party to the proceeding." Minnesota's law didn't do much to strengthen the impartiality of state judges, he said, because "it does not restrict speech for or against particular parties, but rather speech for or against particular issues." He argued that a "party taking the opposite stand is likely to lose" before a judge who as a candidate spoke on the issue, but "not because of any bias against that party, or favoritism toward the other party." In Scalia's eyes, "The judge is applying the law (as he sees it) evenhandedly."

The distinction between speech about parties and about issues has surface appeal, but it's simplistic. Sometimes, a judge's (or judicial candidate's) statement about an issue is more than enough to give him or her a stake in the outcome of a case, particularly when it's made during a campaign. At the same time, Scalia is right that Minnesota's sweeping restrictions on the discussion of legal issues left candidates with a list of approved topics that were probably of little interest to most voters, like improving court administration. The real problem, as O'Connor pointed out in her concurrence in the case, is that it's farcical (not to mention bad policy) to ask voters to choose judges. The difficulty of picking among candidates who can't freely express their views helps to explain the low turnout in judicial elections.

As long as we're stuck with these elections—31 states have them—the Supreme Court was right to give candidates more leeway to say what they think. The court didn't disturb state laws that forbid candidates from making misleading statements about their opponents, from discussing controversies that are likely to come before the court, or from making promises about what they'll do on the bench. Those rules won't catch every instance of speech that judicial candidates shouldn't utter. But they don't cut off a lot of potentially useful speech either.

Judicial elections aside, where you draw the line on off-the-bench speech depends on whether your confidence in a judge suffers when you hear her express doubts or argue with passion about a contested legal issue. When the judge is talking about a case that's before her, or discussing whether a law on which she's likely to rule should be passed, or making a campaign statement that boxes her into a future ruling, her statements don't instill confidence.

Beyond those scenarios, though, doesn't judges' candor generally make us think better of them? In speaking out, judges do open themselves to disagreement and heckling—to appearing more human. But they don't need to be Olympian to be effective. Being impartial doesn't mean having no opinions. Judges' views are captured all the time in what they write and say from the bench. What they should say off the bench is a trickier issue, but we should leave them plenty of room to decide for themselves. They're likely to make us think about something that matters....

Emily Bazelon, a senior editor of Legal Affairs, last wrote for the magazine about 19th-century body snatchings.

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