Ed Whelan offers a detailed breakdown of the Code of Conduct for Judges, and how its canons and advisory opinions suggest that Justice Stevens may have acted unethically by testifying before Congress. In particular, he focuses on Advisory Opinion No. 50 and No. 90 (which I reproduce at the end of this post).
I have a few preliminary observations about these canons and commentaries.
First, the canons do distinguish between a judge making comments about the law in the context of lectures, speeches, and book, as opposed to before a legislative committee. The appearance of a judge making substantive legal recommendations in a book, and to the very legislators who can change the law, seems to take on a different dynamic.
Second, the canons look favorably upon judges appearing before legislative bodies for “matters relating to court personnel, budget, equipment, housing, and procedures.” That seems to make a lot of sense. Every year, two Justices (usually Justice Breyer) cross First Street to offer testimony, and answer questions about the Court’s budget. Though, the Justices always go out of their way to avoid answering questions about any legal issue.
Third, the “propriety” of “a judge appearing on behalf of, or against, particular proposed legislation that relates to subject matter other than the administration of justice ” is “less clear.” This reflects my sentiment that testifying on issue of statutory, and indeed constitutional law, can create the appearance of impropriety. The commentary notes that “Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation.” This note seems to suggest that they anticipate judges appearing before a legislative body to speak as a private citizen in limited contexts.
Fourth, the obvious problem of a judge talking about pending legislation is that it may cause recusals. “Such legislation also may spawn litigation likely to come before the judge.” Perversely, this is not really a problem for Justice Stevens, who though is eligible, and perhaps obligated to hear cases on the Circuit, has not heard any, and is not likely to start.
Fifth, like most canons, ultimately the ethical choices will be up to the judge:
There will, of course, be subject matter that falls close to the line between the permissible and impermissible categories for consultation with public bodies. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood that litigation relating to the subject matter will come before the judge.
Sixth, the canons attempt to place some limit on when a judge can testify about “matters not concerning judicial administration” — “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.” The canons expound on this phrase in Advisory Opinion 90:
We have accordingly advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual.
From this, Ed Whelan concludes:
I don’t see how Stevens’s role in deciding cases involving campaign finance should be thought to give him “special expertise in that area” any more, say, that Justice Scalia’s role in deciding cases involving abortion gives him special expertise in that area. Anyone who would be appalled if Scalia were to testify before Congress on, say, a proposed Human Life Amendment ought equally to be appalled by Stevens’s testimony. There is nothing about either topic that would “reasonably … be considered to merit the attention and comment of a judge as a judge.”
I think it’s an open question if Stevens’s has “special expertise in th[e] area” of drafting statutes and amending the Constitution. It is certainly true that he has special expertise in how the First Amendment should be interpreted based on his three decades of experience. But the focus of the Rule Committee hearing, and of his testimony, was how the law should be changed–both through statutory change and constitutional amendments–not what the law is. For example, Stevens made some comment that members of Congress would be “happier” if they didn’t have to spend so much time on fundraising. Says who?
Further, his testimony touched on issues that could very well come before the Court (or a Circuit Court where he could sit), in the event that the changes he proposes are enacted, and the litigated. In other words, if the Congress listens to him (which they won’t), the very statutes or rules they enact on his advice will almost certainly go before the Supreme Court. That a Justice should bear in mind “likelihood that litigation relating to the subject matter will come before the judge” should be enough to resolve the matter. Stevens also said that he was “confident” that his colleagues would interpret the word “reasonable” in his proposed amendment in a certain way. This glib comment, in my mind, comes awfully close to prejudging a case, and giving an advisory opinion. (Again, not that there’s any chance he would hear it on a Circuit Court).
The subject of Opinion 90 requires that the “subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual.” I am not entirely clear what “judge as a judge” means. At the least, it should tell me that judges should testify, if at all, in the role of judges on matters that affect broader issues of law and justice. Not based on personal gripes a Judge may hold against the way the law stands. And, more importantly, not by asking the Congress to change the very laws that judge will (in theory at least) have to interpret.
Relatedly, I am reminded of an address Justice Alito gave in 2010, titled “Let Judges be Judges.”
The assault on the traditional idea of the role of judges began more than 100 years ago. But ordinary people stubbornly hold on to some old-fashioned beliefs, one of which is the idea that the Constitution means something. Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two-thirds of those polled said: apply the law as written. That’s what we mean when we say that we have the rule of law and not the rule of men.
We need to preserve that idea. Judges are not scientists, and they should not be constitutional rubber stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution. And they should not aim to be theorists or crowd pleasers. Let judges be judges. For if they are not, our legal system as we know it will fade away.
I’ll stick with Justice Alito’s sage words. Justices should not “pursue a reform agenda,” on either side of First Street. Let Judges be Judges.
I should stress that my earlier analyses of Justice Stevens’s conduct were not based on the Code of Conduct. (In fact, the Justices aren’t even bound by this Code.) This is a close question, which the commentary reflects. In my mind, a Justice should err on the side of not speaking about pending legislation that may come before the court. Stevens has taken this to the polar opposite. As I noted in a few interviews the past couple days, if Justice Stevens retired from the bench completely, my criticisms of the propriety of his comments would vanish.
Here is the entirety of Advisory Opinion No. 50, titled “Appearance Before a Legislative or Executive Body or Official.”
This opinion considers the propriety of a judge appearing before a legislative or executive body or official as a witness or as a supporter or opponent of proposed legislation.
Canon 4 of the Code of Conduct for United States Judges provides, in part:
A judge may engage in extrajudicial activities, including law- related pursuits and civic, charitable religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture and teach both law-related and non legal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, [or] lead to frequent disqualification . . .
A. Law Related Activities
(1) A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
(2) A judge may consult with or appear at a public hearing before an executive or legislative body or official:
(a) on matters concerning the law, the legal system, or the administration of justice;
(b) to the extent that it would generally be perceived that a judge’s judicial experience provides expertise in the area; or
(c) when the judge is acting pro se in a matter involving the judge or the judge’s interest.
The accompanying Commentary states:
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits, and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.
Under Canon 4, a judge properly may appear before a legislative or executive body or official, at a public hearing or in private consultation, with respect to matters concerning the administration of justice. Examples would be matters relating to court personnel, budget, equipment, housing, and procedures. These matters are all vital to the judiciary’s housekeeping functions and the smooth operation of the dispensation of justice generally. This much is clear. See also Advisory Opinion No. 59 (“Providing Evaluation of Judicial Candidate to Screening or Appointing Authority”).
Here is the key portion, most salient to Justice Stevens’s testimony.
Less clear, however, is the propriety of a judge appearing on behalf of, or against, particular proposed legislation that relates to subject matter other than the administration of justice. Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation. Such legislation also may spawn litigation likely to come before the judge. Although Canon 4A(2)(a)’s phrase “matters concerning the law” could be broadly construed to embrace nearly all legislation and executive decisions, the Committee advises that the reach of the canon is not that broad and, indeed, was intended to be comparatively narrow. See Advisory Opinion No. 93 (“Extrajudicial Activities Under Canon 4”).
There will, of course, be subject matter that falls close to the line between the permissible and impermissible categories for consultation with public bodies. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood that litigation relating to the subject matter will come before the judge.
In summary, with the exception noted below, a judge may appear at a public hearing before or consult with an executive or legislative body or official relative to matters not concerning judicial administration only “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.” Canon 4A(2).
Also relevant is Advisory Opinion No. 90, which elaborated on Advisory Opinion No. 50:
Consistent with this emphasis upon whether a judge brings to bear a special expertise, Canon 4A(2) provides that a judge may appear before or consult with an executive or legislative body or official only to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area at issue. We have accordingly advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. See Advisory Opinion No. 50 (suggesting that a judge should not testify before a legislative committee on social legislation).