Sit Down and Shut Up? Dahlia Lithwick Gets It Half Right

In an interesting recent piece in Slate, Dahlia Lithwick and Sonja West (a former clerk to retired Supreme Court Justice John Paul Stevens) explore the question of whether and when sitting and retired judges should be free to express their personal opinions on public issues. Lithwick and West conclude that, with respect to sitting judges (or justices), silence is the better option – that the perceived fairness of the system is better served if judges don’t speak out on matters of public concern, especially issues that might end up being resolved by the courts. They argue that retired judges, however, ought to be free to speak their mind as they see fit, since “they’ve earned” the right to do so. Lithwick does better on these questions than she ordinarily does – she got it half right.

Lithwick’s concern with respect to sitting judges speaking out seems to be based upon the premise that when judges express opinions publicly on issues of public concern, people will come to believe that the judge has pre-judges an issue that either has or might come before him, thereby eroding confidence in the fairness of the system. But when, say, Justice Stevens runs around deriding recent Supreme Court decisions, including decisions issued while he was still on the Court (but in dissent, as in Bush v. Gore), isn’t the potential for damage to the system the same? Don’t such criticisms from retired justices similarly risk eroding confidence in the system?  It is, of course, interesting to note that those whom Lithwick claims have “eaned” the right to speak out happen to be expressing opinions with which she herself likely agrees. But of course I am not so cynical as to suggest that Lithwick’s views on judges’ free speech rights depend upon whether or not they agree with her personal agenda or not.

The bottom line is that judges, and Supreme Court justices, are humans and, as lawyers, in all likelihood very opinionated humans. They have their beliefs, preferences and ideas. Many of the opinions that they hold in private likely relate to issues that have arisen in cases that have come before them, or that might some day come before them. If we are concerned that a particular individual won’t be able to set aside those opinions and beliefs and decide cases based upon the relevant facts and law, then they ought not be put on the bench in the first place. If we are confident, on the other hand, that they have that ability, then there’s nothing to worry about. And whether the judge or justice in question decides to speak out publicly on an issue doesn’t affect the calculus at all. In fact, if anything, recognizing judges’ unfettered free speech rights makes it easier for us to determine how able they are to be impartial.

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