Err on the Side of Allowing Speech
David Lat, a lawyer and journalist, is the founder and managing editor of Above the Law, a Web site about the legal profession. He is the author of the forthcoming "Supreme Ambitions," a novel.
Updated November 4, 2013, 3:35 PM
Public understanding of the U.S. judicial system leaves something to be desired. Approximately two-thirds of Americans can’t name one Supreme Court justice or all three branches of government. Not surprisingly, Judge Judith Sheindlin, the television jurist better known as Judge Judy, is far more famous than Judge Shira Scheindlin, the federal judge whom the Second Circuit appeals court recently removed from presiding over challenges to New York City’s stop-and-frisk policy.
A number of judges are making efforts to combat the citizenry’s ignorance about the courts. Some judges, including U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer, write articles and books about the judicial process. Other judges, such as Judge Scheindlin, deliver speeches, teach or give interviews to journalists. And a few judges, like Richard Posner and Richard Kopf, speak directly to the public through blogging.
These efforts are valuable and should be encouraged. As New York State Chief Judge Jonathan Lippman has written, “When judges take the time to speak, write, lecture, and teach, particularly on law-related issues, it improves public understanding of the courts and strengthens positive perceptions and institutional support for the judiciary and the legal system.”
The Second Circuit’s decision removing Judge Scheindlin from the stop-and-frisk cases – which may have had less to do with her media interviews and more to do with the panel's allegations about her use of an internal court rule concerning how cases get assigned – might have been justified (although the move has received significant criticism). But as a general matter, when policing supposed violations of impartiality, courts should err on the side of permitting judicial speech. Doing otherwise risks creating a “chilling effect,” causing already cloistered judges to shirk their duties of civic education, further disengage with the world around them, and hide underneath their robes.
Impartiality, both actual impartiality and the appearance of it, is an important judicial value. But so is transparency, which strengthens judicial accountability and contributes to public understanding of the courts. And when it comes to comprehending the complex, often opaque operations of the justice system, we need all the help we can get.
A number of judges are making efforts to combat the citizenry’s ignorance about the courts. Some judges, including U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer, write articles and books about the judicial process. Other judges, such as Judge Scheindlin, deliver speeches, teach or give interviews to journalists. And a few judges, like Richard Posner and Richard Kopf, speak directly to the public through blogging.
One of judges' duties is civic education. When courts try to muzzle judges, the silence is generally worse than the speech.
The Second Circuit’s decision removing Judge Scheindlin from the stop-and-frisk cases – which may have had less to do with her media interviews and more to do with the panel's allegations about her use of an internal court rule concerning how cases get assigned – might have been justified (although the move has received significant criticism). But as a general matter, when policing supposed violations of impartiality, courts should err on the side of permitting judicial speech. Doing otherwise risks creating a “chilling effect,” causing already cloistered judges to shirk their duties of civic education, further disengage with the world around them, and hide underneath their robes.
Impartiality, both actual impartiality and the appearance of it, is an important judicial value. But so is transparency, which strengthens judicial accountability and contributes to public understanding of the courts. And when it comes to comprehending the complex, often opaque operations of the justice system, we need all the help we can get.
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