Antonin Scalia, Blog Wars, Blogging, Federal Judges, Jed Rakoff, Legal Ethics, Richard Posner, SCOTUS, Shira Scheindlin, Supreme Court, Thomas Goldstein

Are Federal Judges Out Of Control?

Judge Richard KopfNine days ago, Judge Richard Kopf wrote an article about the Supreme Court’s decision in Hobby Lobby that suggested, “[a]s the kids say, it is time for the Court to stfu.” It was a good post, but something that seemed of such little controversy that we relegated it to an in-blurb mention within Non-Sequiturs.

And then all manner of shock and hand-wringing commenced.

It’s not the first time a federal judge received criticism for speaking out. Are jurists like Judge Kopf out of control?

I’m not going to wade much into defending his precise statement on Hobby Lobby. The attacks on it are so full of sanctimony that they deserve short shrift. But what is it with the disrespecting of “lower” federal judges, reprimanding them like disobedient children, simply because they have opinions?

Judge Kopf’s statement has been plastered all over the place, but few place it in its appropriate context:

Next term is the time for the Supreme Court to go quiescent — this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.

That’s pretty mainstream analysis punctuated by a fun bit of Internet lingo. What it isn’t is a signal that Judge Kopf is about to go rogue and disrespect established precedent. He would — I presume — rule for the plaintiff if a case indistinguishable from Hobby Lobby entered his courtroom. It would be a ruling replete with dicta about the problems with that decision, but it would uphold Hobby Lobby nonetheless.

Judges are capable of walking and chewing gum simultaneously after all.

It’s actually embarrassing for us as a culture that Judge Kopf is getting more flack for offering concise analysis of the legal landscape — which is kind of his job — than he got for the “ignorant sluts” fashion advice column, which fairly deserved critique.

Does his “stfu” comment show profound and unacceptable disrespect for the Supreme Court? Who cares? Judges aren’t asked to swear their allegiance to the members of the Supreme Court like they’re superior officers. Judges must respect precedent, they don’t have to agree with it. On the flip side, Justice Scalia can go around fanning the flames for violent militia members by suggesting that people launch an armed revolution against the United States Constitution he’s sworn to uphold. How is that not a bigger ethical breach than intimating that the Supreme Court made a poor policy decision that harms the democratic process? Oh, that’s right, because the Supreme Court is not subject to the same ethical rules as the rest of the judiciary. What’s up with that? Is everyone so fixated on the primacy of THE SUPREME COURT that we consistently ignore their breaches of common sense ethical obligations and blow out of proportion the fact that a trial court judge has access to Urban Dictionary?

Reading between the lines of the criticisms, Judge Kopf’s crime was daring to — in a conversational setting — question the Supreme Court’s infallibility. Justice Scalia isn’t the Pope as much as he might want to be. Implicit in that is the idea that judges beyond The Nine lack the right to hold legal opinions. That seems to run contrary to how they got their jobs in the first place (excluding the pure patronage appointments).

If we really believe federal judges are among the finest legal minds in the country (let’s operate under that assumption for the moment), then why cut them off at the knees whenever they express an opinion on the development of the law? Judge Jed Rakoff got reversed for having the gall to suggest that “Chevron” means less than “letting revolving door sycophants set favorable settlements for the companies they want to work for” and drew some criticism for penning a smart piece about how the government has dropped the ball on financial crimes. Judge Shira Scheindlin got removed from stop-and-frisk cases for suggesting that she treated both parties equally rather than leaning toward the government. So obviously the law couldn’t benefit from these voices. In the words of Judge Kopf, district court judges “are the TTT of the federal judiciary.”

Even the next tier up is getting flak for being too big for their breeches. Motorola, represented by Tom Goldstein of Goldstein & Russell (and SCOTUSblog fame), has filed a motion objecting to a decision by a panel that included Judge Posner. Based on the Motorola brief — which is admittedly a one-sided account — it does sound like Judge Posner may be going a tad afield by converting a motion ruling into a decision on the merits. At least he’s consistent — he’s never really felt that he’s an inferior court. But the motion also criticizes Judge Posner for not taking the word of the Solicitor General’s office at face value. The Supreme Court gets to make snide comments about the government and the quality of its representation all the time, and it’s not somehow a travesty when a lower court — excuse me, Judge Posner, an “intermediate appellate court” — does the same thing.

It’s more than just the civic importance of understanding that judges have thoughts and opinions, it’s about an unwarranted excision of the best and brightest from the evolution of the law. When the Supreme Court gave the judiciary the power of judicial review in a fit of judicial activism (yeah, that’s right textualists and originalists, that’s what Marbury was — so to be faithful to your philosophies you should really never rule on these cases), it didn’t vest that power solely within itself.

Last week there were rumors that Judge Kopf may give up blogging over this incident. He’s already done that once and mercifully reversed himself.

We’re hoping he doesn’t ever stfu.

Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases
Motorola to 7th Circuit: Make Judge Posner follow the rules [Reuters]
Pandora’s Supreme Court [Huffington Post]
Err on the Side of Allowing Speech [New York Times]
Judge Might Give Up Blogging After Telling Supreme Court To ‘STFU’ [Business Insider]

Earlier: Justice Scalia Literally Encourages People To Commit Treason
Judge Rakoff Rips The Government For Dropping The Ball On Financial Crimes
Ouch! So What Does That Make Magistrate Judges?
Federal Judge Suggests That Women Lawyers Not Dress Like ‘Ignorant Sluts’

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