One of the most amazing developments in the legal blogosphere last year was the emergence of the Hercules and the Umpire blog, because it was written by an actual sitting federal judge. It wasn’t just warmed-over pablum, nor was it some sort of scholarly legal blather. Instead, like a classic blogger from the early days, a federal judge just started telling us what it’s like to do his job. He expresses his opinion about a variety of related issues, he takes a stand, and he even goes off on a rant from time to time. In a few cases, his blog posts have pissed people off and earned him some harsh criticism.
Welcome to the blogosphere, Judge Kopf. We’ve got donuts.
I don’t actually read Hercules and the Umpire very often unless I find a reference to it from one of my regular daily reads. In part, that’s because Judge Kopf’s focus on issues affecting the judiciary is a little too specialized for me. I’m not familiar enough with the issues to understand how to think about them, and I’m not interested enough in them to learn more. My concerns tend to focus on the design and consequences of public policies, whereas HatU is more about how the judiciary does the things they do.
Along those lines, Judge Kopf wrote on Saturday about the Hobby Lobby case, in which the Supreme Court ruled that, due to the religious beliefs of its owners, the Hobby Lobby chain did not have to comply with the regulatory interpretation of the Affordable Care Act by offering certain specific kinds of female contraceptives in its employee medical plans. I had previously made the point that this was a relatively minor issue that was turning into a giant legal and political battle that has now gone all the way to the Supreme Court, and that we could expect more such battles in the future because the ACA made all kinds of healthcare-related decisions into political issues.
Kopf’s point was based on a similar view of the importance of the contraceptive mandate:
To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.
The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute. What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases? What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?
The reason Judge Kopf advances for avoiding highly controversial cases is to preserve the legitimacy of the court. After all, the court has no army to enforce its decisions, so people — including politicians, bureaucrats, and police officers — obey the court out of a tradition of respect and mutual acceptance of the legitimacy of its decisions, and the court would do well to not to waste that obedience on heated controversies that aren’t very important in the grand scheme of things:
Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.
Judge Kopf thought it was time for the Supreme Court to ease up before they lose the support of the people:
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 is essentially arguing that it is necessary for the Supreme Court to allow some injustices to go uncorrected in order to retain the moral authority necessary to correct other injustices that are presumably more important. He’s not saying that making that kind of tradeoff is a good thing, only that it’s a necessary thing for the long-run good of the justice system.
I never thought of that before, but my gut feeling is that it makes some sense, especially since the Supreme Court is always limited by time constraints. The sheer volume of cases means the have to pick and choose which ones to hear, and so they might as well be strategic about it. On the other hand, there’s also the argument that the best way to maintain the court’s authority is to use it regularly, so that people become accustomed to acceding to its authority. I think this is a fascinating discussion about how the Supreme Court can assert leadership in the national legal arena.
However, according to Scott Greenfield, a number of people latched onto something that completely escaped me, the very last word of Kopf’s post, “STFU.” Apparently, this might be the first time that a sitting Article III judge has publicly told the highest court in the land to “Shut The Fuck Up.”
Responding in part to this controversy, Judge Kopf reprints a letter he received from a lawyer, advising him that it is time to stop blogging:
[...] in my 25 years as a lawyer, it is my inescapable conclusion that an important element, perhaps the most indispensable one, in our legal system’s ability to deliver justice is public trust in judges.
Well, I’m going to dispute his premise right there. I have no doubt that public trust in judges is an important part of the legal system’s ability to deliver justice. But I think something even more important than public trust in judges is that the judges be worthy of that trust.
In order for our system to work, the public must know that a judge will decide matters thoughtfully, impartially, respectfully, and on the merits.
This is where I have a fundamental disagreement with Kopf’s letter writer: He wants the public to “know” something that simply isn’t true. We certainly want judges to decide matters thoughtfully, impartially, respectfully, and on the merits, and I’d like to think that the majority of judges will do that the majority of the time, but certainly they won’t all do that every time.
How does such attention and reaction create an appearance that assists the public’s acceptance of the law, help people trust judges, foster faith in our system, and advance the cause of the delivery of justice?
It probably doesn’t, and it probably shouldn’t. There’s such a thing as placing too much trust and confidence in judges. Some judges will be idiotic, other times they will be assholes. Our judicial system is unavoidably human and therefore necessarily imperfect. Trust and faith in the system are important, but only to the extent that they are based on a realistic assessment of the quality and capabilities of the system. Trusting judges too much is just as bad as trusting them too little.
As I understand it, part of your motivation for continuing with your blog is your passion that “federal trial judges be seen as individuals with all the strengths and weaknesses (baggage) that everyone else carries around.” [...] I fail to understand the particular level of importance you apparently ascribe to folks’ possession of that understanding about judges. What difference does it make whether federal trial judges’ strengths and weaknesses and baggage are properly understood?
The same difference it makes for anybody else in any other job: We want to make sure we aren’t depending on them to do something they are incapable of doing.
[...] a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions. It is entirely proper for us to expect that judges not be publicly profane, lewd, or disrespectful; and it is entirely proper to expect judges’ words and deeds to be consistent with the high ideals of integrity and justice. In fact, the success, or lack of success, of our legal system largely depends on judges’ meeting these standards.
Here the judge’s critic has subtly switched subjects. Until now he has been speaking about the extent to which Judge Kopf’s blog undermines public confidence in the judicial system (and implicitly about whether that would be a bad thing). In this section, however, he changes his focuses to the more personal question of whether Kopf is behaving properly in his role as a judge.
I don’t know enough about the court system to have a strong opinion about whether Kopf’s uncensored comments on his blog illustrate that he is unfit to be a judge. (My gut feeling is that we tolerate much worse from judges, just not in the form of blog posts.) What I do know is that regardless of whether you think Kopf is a thoughtful judge who provides valuable insights into the humanity of the federal judiciary, or you think that Kopf is an intemperate fool who should resign from the bench, you think that because of his blogging. You’ve learned something about Judge Kopf specifically and the judiciary in general. Whether this is good news or bad news, it’s still information, and more information is always better.
So if Judge Kopf decides to stop blogging because he feels it undermines his ability to do his job as judge, that might make sense. I wouldn’t know. But if Judge Kopf is worried that his blogging will undermine public trust in the judiciary, I say keep talking. Undermining trust in the judiciary might be just what we need. Or not. But we’ll have a better chance of figuring it out if we know more about it.