Hoping not to be bullied is not a worthy strategy for a co-equal branch of government.
A little over two years ago, the Administrative Office of the United States Courts (AO) issued a new policy which barred its employees and staff from engaging in partisan political activity, including posting yard signs or making ordinary campaign donations. I predicted at the time that the First Amendment implications would likely turn the new policy into a headache for the AO.
And so it did. In May of 2018, two AO employees filed a complaint in the U.S. District Court for the District of Columbia, alleging that the policy violated their First Amendment right to engage in core political speech. Last week, the court agreed, granting summary judgment to the plaintiffs and promising to enter a permanent injunction preventing the AO from applying its policies to most of its employees. The court’s opinion is eye-opening, both for the district judge’s robust defense of First Amendment rights and for the AO’s cowardly view of the judiciary’s place in American society.
I don’t make the charge of cowardice lightly. I generally admire the work of the AO and its Director, James Duff. But the arguments that the AO presented to justify its self-censorship revealed a heartbreakingly pessimistic view of the relationship between the federal courts and the people they serve. First, the AO claimed that off-duty partisan activity by its employees — say, attending a political rally after work hours — would cause members of the public to question the impartiality of federal judges in deciding individual cases. Second, it asserted that federal judges themselves would no longer trust the AO’s administrative advice if they believed that its employees had partisan leanings. And third, it claimed that political activity by AO employees would cause other branches — especially Congress — to look at the federal courts with a jaundiced eye and accordingly deny the courts the resources they need.
Each of these fears, District Judge Christopher Cooper concluded, was unfounded. Certainly they lacked any historical support. For nearly eight decades before the new policy was introduced, AO employees had been free to engage in a wide range of political activity outside of work. Yet there was no evidence that this freedom eroded public trust in the federal judiciary or judicial trust in the AO.
Nor was there reason to believe that the AO needed a different policy going forward. As Judge Cooper explained:
To create the appearance of impropriety at which the [policy] is aimed, members of the public would need to observe an AO employee engaged in partisan activity, somehow come to know that the person in the photo or social media post is an AO employee, understand that AO employees work with federal judges, but mistakenly believe that they play a role in handling individual cases, and assume — based on ordinary expressions of political preference — that the AO employee is so politically biased that she would be willing to violate her professional ethical obligations by attempting to sway the outcome of a case.
The links in this chain are fatally weak. To start, it is unrealistic that members of the public would be so attuned to the inner workings of the federal judiciary that they have heard of the AO and yet at the same time misapprehend its basic role. Moreover, it is unrealistic that the public would interpret routine acts of political expression — such as making a $100 donation or wearing a button or putting up a yard sign — as evidence of such extreme partisanship that the AO employees would choose to subvert the processes of judicial decision-making.
In the same vein, no federal judge — all of whom certainly do understand the AO’s role and capacity — would see ordinary partisan activity by an AO employee as a threat to judicial integrity.
The AO argued that its policy was a necessary response to the current climate of hyper-partisanship, especially as it is fueled by social media. There is surely much truth to that view. There are numerous recent examples of political operatives, journalists, and even elected officials using both mainstream and social media to question the integrity of the judiciary based on isolated events. And the AO, as the administrative arm of the Third Branch, is right to be concerned that such attacks can erode judicial legitimacy. If the courts are seen as less legitimate — even if the view is unfounded — they are at risk of losing other critical resources like funding, jurisdiction, human resources, and even cases to adjudicate.
But while the AO’s diagnosis of the danger was correct, its prescribed treatment was worse than the disease. It views the courts’ resource dependence not as a simple fact of interdependence — a reality that affects almost every public or private organization — but rather as a fatal flaw which must be deemphasized as much as possible. Put differently, the AO’s solution is to lay low, not make trouble, and avoid activity that might draw the attention of resource providers. The same fear seems to be driving the Judicial Conference’s ill-considered proposal to ban federal judges from affiliating with the left-leaning American Constitution Society or the right/libertarian leaning Federalist Society.
It is generally wise, of course, not to stick your neck out for no reason. But neither is it wise to censor oneself solely because a small cadre of obnoxious people might respond obnoxiously. With respect to the Judicial Conference proposal, I recently wrote, “the courts will not preserve their legitimacy by flinching every time they are accused (however cynically) of partiality, and doing so will only embolden their accusers.” Judge Cooper took the same view of the AO policy:
“[A]llowing the challenged restrictions to stand because someone might twist routine civic expression to their political advantage strikes the Court as akin to endorsing the proverbial heckler’s veto: muffling the speaker in anticipation of a hostile overreaction by the listener. For if the government’s declarants are correct that members of Congress and their staffs would be likely to retaliate against the entire federal judiciary if they knew that an AO employee supported the opposite party, then the problem would lie with Congress (and indeed the country), not the AO.”
The better approach, as I have said before, is for the courts to be bold and assertive about their role as a co-equal branch of the federal government. They should confidently champion the professionalism of their judges and staff, and be as open as possible about how their work gets done. In an age in which transparency is a significant public value, courts should focus less on being obtuse oracles of the law and more on being active participants in the public arena. The doesn’t mean that every judge and staffer needs to be on Twitter, but it does suggest that the courts should redouble their efforts to engage, explain, and educate in the public arena. Judge Cooper’s ruling does exactly that. The AO and Judicial Conference might take much from his example.