I have found the “Notorious RBG” phenomenon off-putting since its inception. Perhaps my reaction is due to the fact that Justice Ginsburg, while a brilliant and important figure on the Court, is one of the Justices for whom I have the most trouble separating her legal analysis from her political views. (Justice Alito is the other.) I believe the elevation of her status to legend further undermines rule of law values. Many in the public seem to adore mere soundbites from her opinions, or the base result of a given case. As one might expect, Justice Ginsburg is not notorious for her legal methodology or sound reasoning in a way that appears at all separate from her fans’ policy preferences or political worldviews independent of our actual laws or Constitutional rights.
The Notorious RBG meme also creates the concern that Justice Ginsburg will write opinions or cast votes to further endear her to the public, compromising the independence of a body that safeguards individual constitutional rights over majority sentiment. However, although Justice Ginsburg enjoys her status as Biggie Smalls’s sister, she did not create the meme. What strikes me as potentially worse – especially in an era of political polarization where the judiciary serves a critical role as the branch that represents clear-headed logic – is judges gaining notoriety and fandom through Twitter. Judges tweet publicly about cases decided by other courts, collect praise for their own opinions, and express their religious preferences (one state court justice’s pinned Tweet is “God Got Game”). Some judges even pride themselves on their prowess with the 140-character medium.
At first blush, none of this struck me as wise or instilled confidence in me of a judge’s impartiality (or professionalism). However, Tweeter Judge Dillard of the Court of Appeals of Georgia makes a good case that judges, as public servants, should demystify their role and connect with the public in order to serve rule of law values. He argues, in Duke Law’s Judicature, that because judges, whose duty is to follow the law, “are often called upon to make decisions that will almost certainly prove to be politically unpopular,” social media is a way for judges to demonstrate that they are “accessible to the people.”
Of course, judges have their own First Amendment rights, but are also bound by ethical rules restricting them from acting in ways that evince even the appearance of impropriety. In this post, I explore the rules and restrictions governing judges’ public expression, their free speech rights, and my own views about when they shouldn’t enter the sometimes ugly, self-affirming free-for-all that Twitter has become.
First, it is important to note that the ethical obligations and role of federal judges, who are appointed so that they retain their independence, may differ from state judges, who are largely elected. Even federal judges are “in a unique position to contribute to the law, the legal system, or the administration of justice,” and thus may engage in educational, religious, financial, and governmental activities, and may speak and write about law-related and nonlegal topics. Judge Posner (for better or worse) is a famous example of a federal court of appeals judge who is not shy about criticizing those who outrank him in the judicial hierarchy.
Nonetheless, federal judges “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, [or] reflect adversely on the judge’s impartiality….” In enforcing these ethical rules, we should give judges some leeway to express their views, but many comments by judges arguably reflect negatively on a judge’s ability to be impartial. Justice Ginsburg’s non-Twitter comments about Donald Trump come to mind here. Twitter compounds this problem because it is a medium that is inherently less dignified due to its short character limitations and propensity to spark bickering.
State judges are elected, and to some degree are supposed to more responsive to public opinion. But we should distinguish between responsiveness to public opinion about the law and how it should be interpreted (to those who subscribe to popular constitutionalism) and responsiveness in the form of seeking Twitter likes for the results of singular, individual cases. The second seems more problematic if we care about having impartial, unbiased judges ruling in individual cases.
Although state judges are elected – a practice that arguably already compromises their independence – their codes of judicial conduct are often similar to the rules for federal judges. In Texas, for example, judges must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Judges publicly seeking likes and retweets, especially about their own opinions/dissents, or proselytizing their own religious views, does not instill in me confidence of their impartiality, but perhaps I am idiosyncratic in this regard (feel free to comment here or email me; I am interested in alternative views).
Judges are permitted to join religious organizations and of course may share their own religious views personally, but judges using Twitter accounts tied to their status as a judge to preach their own religious values comes awfully close, in my view, to creating an Establishment Clause problem, under both the Lemon test and the Lynch test. This type of tweeting is fundamentally different, I believe, from Justice Scalia’s well known devotion to Catholicism, especially because he loudly proclaimed his practice of separating his religious views from his legal analysis (and the proof is in the results of his cases, to a decent extent).
I am not prepared to say that religious tweets rise to the level of an Establishment Clause violation, especially in light of judges’ own First Amendment rights of free speech and free exercise of religion. I do think religious tweets are particularly inappropriate given the Supreme Court’s Establishment Clause jurisprudence on how entanglement of government and religion is alienating to citizens of minority religions, atheists, and agnostics. As a professor at a private university, not even subject to the Constitution, I avoid mentioning my religion in class so as not to alienate other students or appear to show partiality to those of my faith.
Deciding the First Amendment rights that judges actually possess is perhaps a less difficult, but more important, question than deciding what is and is not unwise or inappropriate judicial speech. The Constitution imposes limits on the government’s ability to restrict even unwise speech from judges. Some argue that the ethical restrictions we place on judges’ speech violate the First Amendment in many cases. Religious speech and political speech both receive the highest level of First Amendment protection, but both have the greatest potential to manifest the appearance of partiality or bias. Generally, government officials performing government functions receive extremely limited First Amendment protections. However, judges tweeting in their free time are not performing government functions in the same way. When judges create tweets connected to their status as judges, courts should not be worried about a government office’s ability to maintain a consistent message in order to function, as in Garcetti v. Ceballos, but we should all be worried about the government actor’s obligation to appear impartial and to remain independent.
The Supreme Court has invalidated, using strict scrutiny, restrictions on judicial candidates’ announcing their views on legal or political issues. Part of the rationale of the Court’s opinion, however, was the importance of elected officials’ ability to speak out on contested issues during campaigns. This rationale would apply less to federal judges and to state judges once they are currently serving as judge. The federal courts of appeals have split on the constitutionality of restrictions prohibiting judges and judicial candidates from affiliating with a political party or publicly endorsing partisan politicians for office, and some even apply more deferential scrutiny to those restrictions. Even more deferential scrutiny is applied to personal remarks that show animus towards particular groups, especially racial groups, but statements endorsing particular candidates or displaying personal hostility on the basis of race evince personal favoritism that is more corrosive to the appearance of impartiality.
At this juncture, I believe that judges’ speech that does not obviously and flagrantly demonstrate bias should be protected by the First Amendment, but that we should perhaps strengthen recusal procedures to ensure the fair administration of justice. However, any recusal provisions would need to be sufficiently specific and detailed so as to avoid chilling speech in violation of the First Amendment. Even more strongly, I believe that, as a matter of good practice and professionalism, if judges wish to express their personal political or religious views, they should do so in a way that is not connected to their status as judges.