The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

(In)judicious blogging

July 9 2014 9 July 2014

In a recent blog post, Richard G. Kopf, an American federal district judge, wrote that “it is time for the [U.S. Supreme] Court to stfu.” Judge Kopf was reacting to that Court’s decision in Burwell v. Hobby Lobby, accepting a corporation’s claim for a (statutory) religious exemption from an obligation to provide health insurance covering the cost of certain forms of contraception, to which its owners objected, to its employees, as well as some other recent decisions. The Court, in his view, should “go quiescent” and avoid causing unnecessary divisions.

The response to Judge Kopf’s comment has not been kind. One law professor and blogger has suggested that he “heed his own advice”; another, that he “either stop blogging or retire from the bench”; a lawyer, that he “stop posting.” (As of now, the post consisting largely of that lawyer’s letter is the last one on Judge Kopf’s blog.) This reaction has in part been triggered by Judge Kopf’s use of profanity, and surely has something to do with the fact that Judge Kopf has written highly objectionable things on his blog in the past. But it seems pretty clear that it is not only the tone of his latest outburst that is at issue. The very idea of a judge blogging, and especially of a judge blogging to criticize his hierarchical superiors, makes some people uncomfortable. Judge Kopf’s correspondent, for instance, thinks that “blogging by judges harms our system significantly.” This episode is, in part, only an occasion for this discomfort to express itself especially forcefully.

To quote Judge Kopf’s correspondent again, it is unclear

how judicial thinking out loud can ever be a net plus on the scales of public trust and confidence in judges and, by extension, the law. It seems to me that such public nav[e]l gazing from a judge assumes even more potential negative weight when it takes the form of modern electronic communication prone to going viral if a member of the judiciary communicates on a controversial topic or in a controversial way.

Canadian judges presumably agree with this. I am wrong perhaps, but I cannot imagine that one of Judge Kopf’s colleagues this side of the border would take up blogging, never mind blogging in a tone as unbridled as his. And Canadian lawyers are probably happy about that.

But it is worthwhile to consider a contrary viewpoint, also expressed, as it happens, in extrajudicial statements by an American judge even more outspoken, if less profane, that Judge Kopf. In a recent interview, the ABA Journal’s Joel Cohen asked Circuit Judge Richard A. Posner whether his recent high-profile “dust-up” with the U.S. Supreme Court’s Justice Antonin Scalia undermines “the respect the judiciary might have in the eyes of the public, or even the bar itself.” Judge Posner’s response was that he didn’t care. He doesn’t understand, he said,

why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they're totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

And generally, Judge Posner devoted much of the interview to defending various sorts of extra-judicial pronouncements. No, he said, a lower-court judge criticizing higher-ups wouldn’t be running after reversals. A judge criticizing government on policy issues wouldn’t be compromising his impartiality in future cases, and anyway litigants (including the government) have no “right to a tabula rasa—some total ignoramus who's never thought about any of the issues.” If judges have views, they might as well express them, so long as they are not too committed to them and remain willing to change their minds.

Interestingly ― and seemingly without any awareness of the self-contradiction ― in response to a follow-up question, Judge Posner opined that “[a] public official is always more guarded—or should be—when communicating with the public.” So what’s more important for judges, transparency or reserve? I’m not sure the answer is entirely clear-cut.

It is, of course, very tempting to think that by remaining reserved and dignified, by refraining from extra-judicial commentary on controversial matters (and perhaps even from adjudicating such matters as Judge Kopf, ironically, was suggesting!) judges will foster the confidence in their own work and in the legal system that is necessary for the preservation of the Rule of Law. Judges must be impartial and unprejudiced, and extrajudicial remarks can give rise to an appearance of having prejudged matters, contrary to what Judge Posner might think.

Yet if public confidence in the judiciary is so important, can this confidence rest on pretence? Judges are thinking individuals. Not only do we have no right to “some total ignoramus who’s never thought” about the issues his or her court might face, but we would not want such a person to be a judge. It seems more than likely that judges have opinions on controversial topics, and at least plausible enough that these opinions are sometimes strongly felt ― and perhaps even occasionally profane. But if that be so, why should be more trusting of a group of people who make a point of hiding their true thoughts? More openness would, as Judge Posner says, increase public understanding of the judiciary; is it crazy to suppose that it would also increase public trust?

And does judicial reserve actually serve to maintain confidence in the judiciary and the legal system? It hasn’t prevented an apparently ever-growing movement of kooks from rejecting the courts’ authority altogether (as well, in fairness, as the authority of the other branches of government). It hasn’t stopped perennial attacks on “judicial activism,” whatever that might mean. And the federal government’s recent attacks against Chief Justice McLachlin, they were probably encouraged by an expectation that the Chief Justice would maintain her reserve and not fight back. If these attacks have undermined the Supreme Court’s authority, or would have done so had the Chief Justice kept her silence (admittedly a big “if” in my opinion), judicial reserve has or would have been counter-productive in maintaining public confidence in the courts.

All that said, my gut instinct is still to say that judges probably should err on the side of reserve rather than outspokenness. I too am uncomfortable with judicial blogging, as much as I have enjoyed reading Judge Kopf over the last year, or Judge Posner’s joint blog with the late Gary Becker. Blogging is a great way to run the risk of making a very public fool of oneself. Yet I have chosen to run this risk, despite advice one sees occasionally that pre-tenure (never mind pre-job!) academics should not blog. Of course, if I make a fool of myself, I am the only person to suffer. A judge has responsibilities to other people, and to a system which he or she serves. Nevertheless, we should not be too quick to trust our gut instincts ― whether they tell us to hit that “publish” button, or to stfu.

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue

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