Category Archives: Writings

Constructive criticism

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This post was originally a column in the Court Review, a publication of the American Judges Association.

In addition to the usual declaration that judges may “write, lecture, speak, or teach on legal subjects,” Canon 2L of the new Virginia code of judicial conduct makes clear that a judge “may express and explain his or her disagreement with existing precedent so long as he or she does so in a respectful manner and acknowledges his or her duty to faithfully apply existing precedent notwithstanding the judge’s disagreement with it.”

That explicit permission to disagree, unique to the Commonwealth, may have been prompted by a 2020 opinion from the Virginia Judicial Ethics Advisory Committee nixing a judge’s proposed article about the state supreme court’s interpretation of a criminal law.  Virginia Advisory Opinion 2020-2.  (The Virginia Supreme Court had approved the opinion as a rule requires the committee to “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”)

Noting its assumption that the author would be “scholarly and respectful” and would not discuss pending or impending cases, the committee determined that the article would likely be “a permissible educational or scholarship exercise”—if the judge-author only analyzed the statute and the court’s decisions.  However, the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation.”  In the committee’s opinion, readers would likely infer from that analysis that, in ruling as a judge, the author would substitute their preferred interpretation rather than follow the criticized precedent.

Acknowledging the “natural tension” between judges having opinions about legal issues and judges being open-minded, the committee concluded that the proposed article appeared to represent “pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  The committee also rejected the inquiring judge’s suggestion that the article would be permissible if the author included a disclaimer stating that they were not expressing an opinion on any case that may come before them.  The committee noted that it does not have the authority to address First Amendment issues.

One committee member dissented, evoking the Hans Christian Andersen folk tale to argue that judges have the responsibility to respectfully point out “if the emperor has no clothes,” that is, if “an appellate court may have misapplied a rule of construction or applied faulty logic.”  The dissent noted that the inquiring judge was not advocating for nullification of the law, casting “aspersions on the competence or integrity of members of the judiciary,” or suggesting “rebellion and defiance against the appellate court’s ruling.”  It explained:

Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.

The dissent disagreed with the majority’s conclusion that the article’s constructive criticism implied that the author would “disregard his or her duty to adhere to decisions of higher courts.”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’” should not be added to the code of judicial conduct.

The importance of judicial participation in the “long tradition of vigorous public debate” about judicial decisions was also emphasized by the Judicial Council of the United States Court of Appeals for the Seventh Circuit when it concluded that a judge who wrote an article titled “The Roberts Court’s Assault on Democracy” had not violated the code, at least in most of what he had written.  Resolution of Judicial Misconduct Complaints About Adelman (7th Circuit Judicial Council June 22, 2020).  The article had been published in Harvard Law and Policy Review and was written by a United States District Court judge.  The thesis of the article was, according to the Council, that, in decisions over the last 15 years, the United States 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.”

Following media reports about the article, three individuals filed complaints against the judge-author.  For example, one stated:  “I don’t see how a party with a conservative background appearing before [the judge] could be confident that they would receive fair, evenhanded treatment.”

The Seventh Circuit Judicial Council described the “competing policy considerations.”  On the one hand, judges should be encouraged to “offer the public valuable perspectives on the controversial cases of the day after they have been decided,” “bring[ing] to bear their professional skills, experience, and training to evaluate the debates among Justices over the meaning and scope of precedents and other legal arguments made in those opinions.”  On the other hand, judges “have special responsibilities in their public extrajudicial writings and speaking” not to “interfere with their work as judges” or “with public perceptions that the judges will approach the cases before them fairly and impartially.”

Explaining that the judge had based much of his article on opinions dissenting from the decisions he criticized, the Council concluded that “the vast majority” of his “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.

However, the Council did admonish the judge for parts of the article.  The article began:

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 article also criticized “the Republican Party’s support for measures to restrict voting rights and to enhance the political and economic power of corporations and the wealthy” and described “the party as having become more partisan, more ideological and more uncompromising.”

The Council concluded:

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.

The Council noted that its public admonition would remind all judges of their obligations to ensure that their “public speaking and writing do not undermine public confidence in the fair administration of justice.”

How judges can acknowledge disagreement among judges and call for improvements in the administration of justice without undermining public confidence in the judiciary and the courts is not a new debate.

In 1983, a Texas justice of the peace noticed that charges were dismissed or fines were reduced for the great majority of defendants who appealed their traffic offense convictions from justice or municipal courts to the county court-at-law.  He believed this practice “unfairly allowed those ‘in the know’ to violate the traffic laws repeatedly and with impunity while penalizing less sophisticated individuals who committed the same offenses.”  In an “open letter” to county officials, he attacked the prosecutor’s office and the county court-at-law.  If the county refused to change this practice, the judge stated, “the public at least should be made aware of it, and the court-at-law ‘would be really busy then.’”  The judge also told a reporter, “It seems the county court system is not interested in justice,” or words to that effect.  The truth of his claims was not contested.

The Texas State Commission on Judicial Conduct publicly reprimanded the judge for public statements that “were inconsistent with the proper performance of your duties as a justice of the peace and cast public discredit upon the judiciary.”  The judge challenged the reprimand in a federal lawsuit contending that his statements were constitutionally protected speech.

The United States Court of Appeals for the Fifth Circuit agreed with the judge and held that, under the First Amendment, the judge could not be reprimanded for his “truthful public statements critical of the administration of the county judicial system of which he is a part.”  Scott v. Flowers, 910 F.2d 201  (U.S. 5th Circuit 1990).  The federal court emphasized that the judge should be expected, not only to exercise independent judgement in deciding cases, but also to “be willing to speak out against what he perceived to be serious defects in the administration of justice.”  It concluded that the goals of promoting an efficient and impartial judiciary “are ill served by casting a cloak of secrecy around the operations of the courts” and that the judge had in fact furthered those goal “by bringing to light an alleged unfairness in the judicial system.”

A “silence is golden” approach by judges may not promote confidence in the judiciary for a public very aware of the criticism and challenges courts face and sometimes invite.  Judges may join the debate without tarnishing the judiciary’s reputation if they are thoughtful and constructive, requiring the balance judges are accustomed to bringing to all aspects of their role.

Alternative interpretation

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A recent judicial ethics opinion from Virginia advised that a judge may not write an article analyzing a particular criminal law statute, asserting that the state supreme court has incorrectly interpreted that statute, and providing an alternative interpretation, even if the judge includes disclaimers stating that the article does not express an opinion on any case that may come before the judge and complies with the code of judicial conduct.  Virginia Advisory Opinion 2020-2.  The opinion was approved by the Virginia Supreme Court pursuant to a rule requiring that the Judicial Ethics Advisory Committee “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”

The inquiring judge proposed writing an article to be submitted to bar association publications.  The committee assumed that the judge would write the article “in a scholarly and respectful manner, with a tone that would not otherwise undermine public confidence in the integrity and impartiality of the judicial system” and without discussing cases that are not pending or impending before any court.  The committee advised that, if the article only analyzed the statute and the Court’s interpretation, its content “would likely be within the bounds” of the code of judicial conduct and “a permissible educational or scholarship exercise concerning the law, the legal system, and the administration of justice.”

The problem, the committee stated, was that the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation,” that is, “to criticize a superior court’s decision in a public forum (as opposed to authoring a judicial opinion in the context of an active case being decided by the judge).”  The committee explained that readers of the judge’s alternative interpretation would likely infer that the author would rule according to the alternative interpretation if the issue were presented to them as a judge.  Although it acknowledged that “impartiality does not mean that judges have no prior opinions about legal issues that come before them,” the committee concluded that, “in terms of that natural tension between having developed opinions about certain areas or issues of law and being open-minded, the proposed content of the article appears to be the type of pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  “This,” the committee concluded, “is not permitted by the Canons.”

The committee also concluded that the disclaimers proposed by the judge were “not enough to render the proposed article permissible under the Canons.”  It explained:

The committee noted that it does not have the authority to address First Amendment issues.

Despite any disclaimer, should the issue arise in a case before the judge, litigants would be on notice of how the judge is predisposed to deciding the case, and would have to tailor their arguments accordingly.  More likely, a litigant with facts or arguments that conflict with the judge’s interpretation would request the judge’s recusal . . . , since the judge’s impartiality might reasonably be questioned.  Depending on the number of cases that arise involving that statute, continual recusals could potentially impact the workload in that judicial district.

1 committee member dissented from the opinion, arguing that “scholarly works on legal topics should be encouraged among judges – especially when an appellate court may have misapplied a rule of construction or applied faulty logic.  If, to borrow from Hans Christian Andersen’s folk tale, the emperor has no clothes, it’s up to the members of his court to respectfully point that out.”

The dissent noted that the inquiring judge did not plan to write “an article advocating nullification of a law . . . , or casting aspersions on the competence or integrity of members of the judiciary . . . , or suggesting a need for rebellion and defiance against the appellate court’s ruling . . . .”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “we should not add to the Judicial Canons the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’ . . .  Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.”  The dissent explained:

A judge who takes the time and effort to offer constructive comment about interpretation of a statute is demonstrating respect for the law.  Moreover, suggesting an alternate analysis to be applied by the Supreme Court is not the same as suggesting that the article’s author or anyone else should disregard the effect of precedent.  Publishing constructive criticism does not mean that a judge is going to disregard his or her duty to adhere to decisions of higher courts.  Moreover, a judiciary that bars constructive comment about the law implies that appellate courts are closed minded, not open to discussion and unfairly biased toward their own predisposition.

. . . The legal system would be greatly weakened by a rule foreclosing a judge’s suggestion that rules of construction support a different interpretation of an existing statute.  Such limitation on open dialogue would compromise the opportunity to achieve greater competence and thereby undermine faith in the law.

Appropriate discourse or personal attack

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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.