When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

One might start with two core principles. First, a sitting judge generally should not speak out on individual politicians or policies, in order to avoid the appearance of bias. This is not to say that judges cannot privately hold their own political, social, moral, or religious views. They can and do, of course, consistent with their rights and obligations as informed citizens. But judges are also tasked with making impartial decisions in difficult and controversial cases, sometimes involving difficult and controversial people. This is why avoiding even the appearance of bias is a value so firmly engrained in the American judiciary, and why Justice Ginsburg’s public comments about then-candidate Trump in 2016 were so obviously inappropriate.

The other core principle is that the courts are entitled to raise public awareness about conditions that affect their ability to perform their constitutional obligations. Because the courts are so dependent on the other branches of government, the bar, and the public for the resources they need to succeed, they perform a necessary service for all stakeholders when they identify areas in which resources are being stretched, denied, or misused.

Justice Sotomayor’s dissent strikes me as falling comfortably into this category. She identifies a practice that falls outside the court system’s typical approach, and which is being used far more frequently than might have been anticipated. To be sure, her dissent targets a particular Trump administration policy and the Supreme Court’s practice in hearing direct appeals concerning that policy. But it invites public debate both about the underlying policy and the extent to which the court system should permit wide-ranging injunctions. These are important issues, which benefit from informed judicial perspectives. If anything, Justice Sotomayor might have gone further: rather than confining herself to a single written dissent, she would do the Supreme Court a service by explaining more fully why she believes it should not be used as an “everyday” emergency court. And in taking this more assertive approach, she would be better able to respond to opposing views about the court system’s practices, and create a useful national conversation about the proper role of the Court. By limiting her engagement to a single dissent, however, she actually increased the likelihood that the issue will be seen as partisan bickering among the Justices, rather than an important discussion about institutional practices and capabilities.

It might seem that this is putting too much on Justice Sotomayor. After all, Chief Justice Roberts would normally be the appropriate institutional voice of the Supreme Court. But since he apparently does not share Justice Sotomayor’s concerns about the Court’s role in this context, it is entirely reasonable for her to press the issue herself. Moreover, the Chief Justice himself has been quite shy about articulating the court system’s positions. He almost never comments directly on the President or Congress, even when their actions threaten the ability of the judiciary to do its work. And his rare forays into the public sphere — most notably, his admonition last year that there are no “Obama judges or Trump judges” — are more like prophetic declarations than public comment. Lacking any follow-up or further explanation, they invite overanalysis and misinterpretation.

Chief Justice Bolger’s comments in Alaska present a slightly more complicated case. As the head of the state judicial branch, Bolger was plainly obligated to point out — as clearly, publicly, and persuasively as he could — that Governor Dunleavy had failed to follow set procedures for filling judicial vacancies in the state. Yet it is often difficult to draw the line between personal and professional criticism; even when one only intends the latter, in a partisan environment the two dimensions tend to become one and the same.

Courts everywhere can learn from this experience. There is no reason why court leaders cannot draw a meaningful line between reserved, impartial, case-specific decisionmaking on the one hand, and full-throated advocacy for their institutional needs on the other. On most instances, the two areas will not conflict. And in the rare instances when they do — where a legal ruling is required on judicial salaries, or judicial impeachment, or the like — a robust history of public comment on institutional issues should benefit the courts by demystifying the nature of court operations for the public and the press. Put simply, a public that is educated about the organization and needs of the courts is more likely than an uneducated public to appreciate the judiciary’s complex institutional issues. But that requires judges to be more vocal and more proactive about the needs and values of their branch of government.