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Jul 8, 2014

Should a Judge Blog? And Tell the Supreme Court to Shut the F--- Up?

U.S. District Court Judge Richard G. Kopf -- who I mentioned in my previous post on the availability of federal courts' audio recordings of their proceedings -- has gotten into a bit of hot water for a post on his personal blog criticizing the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc.

Five days after the U.S. Supreme Court released its opinion in Burwell, holding that closely-held for-profit employers cannot be required under the Affordable Care Act to provide female employees with no-cost access to contraception methods which conflict with the religious beliefs of the company's owners, Judge Kopf wrote in a blog post that "[t]o the average person, the result looks stupid and smells worse," adding that the ruling also "looks misogynistic because the majority were all men," "looks partisan because all were appointed by a Republican," and "looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception." He also wrote that "I am not saying the Justices are actually motivated by such things.

 Judge Kopf then got to the main point of his post, stating that
The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.
* * *
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.
Kopf links to the Urban Dictionary web site for the definition of "stfu," which it describes as an acronym for the phrase, "shut the f--- up."

In March, a post on Kopf's blog regarding attire of female attorneys in court was also criticized, leading to this response. Last October Kopf blasted Congress for the threatened government shutdown, saying that "It is time to tell Congress to go to hell."

And last May he received attention for a post stating that "[a] lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis." Criticism of that post led Kopf to end his blog, but he resumed it two months later.

The latest post, has gotten a fair amount of media attention, and has led to criticism and calls for Judge Kopf to stop blogging (here, in a letter posted on Kopf's own blog; here; and here). In response, Kopf wrote that he is "going to give this letter [from a prominent Nebraska lawyer] serious consideration."

Judge Kopf is not the only federal judge to get attention for blogging. Judge Richard Posner of the federal Seventh Circuit Court of Appeals maintained a blog that he co-wrote with Nobel-prize-winning economist Gary Becker, which included several opinionated posts on controversial political issues including decriminalization of marijuana; immigration and lobbying and campaign finance restrictions. The blog ended after ten years with Becker's death earlier this year. In 2009 and 2010, Posner also had another blog hosted by The Atlantic magazine.

Posner has been critical of the Supreme Court, particularly Justice Antonin Scalia. The dispute began in 2012 with Posner's review of Scalia's co-written book, Reading Law: The Interpretation of Legal Texts, and continues today. Posner made his comments in his book and various magazine articles that appeared in print and online.

Numerous ethical bodies have concluded that judges' use of social media must avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety. See, e.g., A.B.A. Formal Op. 462 (Feb. 21, 2013). See also Md. Jud. Ethics Comm. Op. 2012-07 (June 12, 2012) (urging judges to “proceed cautiously” in their use of social media). Some have gone as far as explictly barring judges from being social media "friends" with attorneys who appear before them. Fla. Sup. Ct. Jud. Ethics Op. 2009-20 (Nov. 17, 2009); Mass. Jud. Ethics Comm. Opinion 2011-6 (Dec. 28, 2011) (requiring recusal).

As for blogging by federal judges, the U.S. Judicial Coference's Committee on Codes of Conduct has concluded that while judges may blog and use other forms of social media, they must remain cognizant of judicial canons. "The Committee ... cautions judges to analyze the post, comment, or blog in order to take into account the Canons that prohibit the judge from endorsing political views, engaging in dialogue that demeans the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the Court." Comm. on Codes of Conduct, Advisory Opinion No. 112 (March 2014), available here.
Invoking Canon 4 of the Employees’ Code, the Committee has advised that maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the employee’s own court, conflicts with Canon 4. Such opinions have the potential to reflect poorly upon the judiciary by suggesting that cases may not be impartially considered or decided. This advice would also apply to judges’ use of social media. A judge would be permitted to discuss and exchange ideas about outside activities that would not pose any conflict with official duties, (e.g., gardening, sports, cooking), yet the judge must always consider whether those outside activities invoke a potentially debatable issue that might present itself to the court, or an issue that involves a political position.

Id.

The Washington State Ethics Advisory Committee, meanwhile, opined that while that state's Code of Judicial Conduct does not specifically prohibit a judge from blogging, "caution should be exercised as to how that blog is used and comments responded to in order to make sure that the judicial officer’s impartiality is not called into question or the action does not impair the judicial officer’s ability to decide impartiality issues that come before the judicial officer." Wash. Ethics Advisory Comm. Opinion 09-05.

Rule 1.2 of the ABA's Model Code of Judicial Conduct provides that "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." The Code of Conduct for United States judges explictly permits to "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." Canon (4)(A)(1).

So a judge may blog and use social media, but not in a way or by making comments that may make litigants, attorneys or the public to question the judge's impartiality and integrity. It seems that criticism of the U.S. Supreme Court and its justices is, within certain boundaries, is fair game. Of course, if the judge is presented with a case that involves an issue that s/he has blogged about, the judge should recuse him/herself.

And while Judge Kopf's statement may have been a bit extreme and rude, it is within the bounds of legitimate criticism of the Supreme Court and not a reason -- legally and ethically, at least -- that he should stop blogging.

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