Appropriate discourse or personal attack

Approving a resolution proposed by a special committee, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a district court judge for the first 2 sentences of a law review article he wrote entitled “The Roberts Court’s Assault on Democracy.”  Resolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020).  The article was published in March in the Harvard Law Review. 

The article begins:

By now it is 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.  Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.

According to the Council, the thesis of the article is that, in a number of decisions over the last 15 years, the U.S. Supreme Court has “undermined the rights of poor people and minorities to vote” and “increased the economic and political power of corporations and wealthy individuals,” resulting in “a form of government that is not as responsive as it should be to the will of the majority of the people.”

There were media reports about the article, and 3 individuals filed complaints.  For example, one stated:  “I don’t see how a party with a conservative background appearing before Judge Adelman could be confident that they would receive fair, even‐handed treatment.”

The Council noted that the complaints raised “competing policy considerations in an area of judicial ethics where there is ample room for disagreement.”

The nation has a long tradition of vigorous public debate over Supreme Court decisions, and judges, including judges in the district and circuit courts, have long participated in those debates.  Judges are able to bring special insight and perspective to those debates.  At the same time, judges also have special responsibilities stemming from their roles in dispensing even‐handed justice in all cases that come before them and in strengthening public confidence in the judiciary.

Noting that the judge drew much of his article “from dissenting opinions in the decisions he criticizes,” the decision stated that “judges criticize one another’s reasoning, sometimes harshly” and that the admonishment should not “be interpreted as suggesting that judges should be silenced from criticizing court decisions.”  The Council concluded that “the vast majority” of the judge’s “substantive criticism of Supreme Court decisions” was “well within the boundaries of appropriate discourse,” although it noted it was not “endorsing or disagreeing” with his views.

On the other hand, the Council explained, federal judges “need to write and speak in ways that will not interfere with their work as judges” or “with public perceptions that the judges will approach the cases before them fairly and impartially.”  It explained:

The opening two sentences could reasonably be understood by the public as an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases.  The attacks on Republican party positions could be interpreted, as the complainants have, as calling into question Judge Adelman’s impartiality in matters implicating partisan or ideological concerns.  While not addressed by specific rules of judicial conduct, these portions of the article do not promote public confidence in the integrity and impartiality of the judiciary.

In response to the complaints, the Council noted, the judge “tried to amend the article,” but it was too late, and offered to publicly acknowledge that “some points in the article are worded inappropriately,” to disavow “any intention to criticize the integrity of the Chief Justice or any other Justices,” and to reaffirm “his commitment to impartial administration of justice, in all cases of any type and with any parties.”  The Council also recognized that the judge “is a thoughtful and hardworking judge who has presided fairly over thousands of cases in his career.”

Finally, the Council noted that the public admonition would remind “all judges within the circuit of our obligations to ensure that judges’ public speaking and writing do not undermine public confidence in the fair administration of justice.”

Complaints like this, about judges’ non‐judicial writings, have been rare and should stay that way.  There is ample room for federal judges to speak and write about the law, including criticisms of past decisions, without prompting appropriate complaints.  Judges should be encouraged to do so consistent with Canon 4 for purposes of public and legal education.  At the same time, it behooves all federal judicial officers to speak and write about the law with special care for their responsibilities to the public and to the larger judicial system, including refraining from personal attacks.