The statement at issue:"I'm not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles ... It's better to keep the roles more separate."-George Washington University law professor Orin Kerr, in a post on April 14 on the legal blog, The Volokh Conspiracy, commenting on an opinion by two judges of the U.S. Court of Appeals for the District of Columbia sharply criticizing the Supreme Court's failure to provide additional constitutional protection for economic rights. The opinion was issued as part of a ruling on April 13; it can be read here.
We checked the Constitution, and...The First Amendment's guarantee of free speech does not have an exception for federal judges, so the only restraint on what they say publicly -- in court or outside -- is their sense of ethical propriety. But even those rules may reach no further than barring a judge from saying something that seems to prejudge a case's outcome.
On the Supreme Court, of course, Justices complain openly about the course that their colleagues sometimes take; dissenting opinions can be harshly critical, and sometimes seem a little too personal for comfort. But that has come to be expected, especially on a Court that winds up deeply divided on some of the most difficult legal and constitutional issues.
It is difficult, though, to figure out why a lower-court judge would make a statement publicly, in an opinion or otherwise, suggesting that the Supreme Court has strayed from a proper judicial course, especially one that stretches back over decades. It smacks of an ideological resentment at having to apply precedents to which the judges personally object.
The opinion to which Professor Kerr was objecting was a public complaint, by Circuit Judge Janice Rogers Brown, joined by Chief Circuit Judge David B. Sentelle, that the Supreme Court has been getting the Constitution wrong since the 1930s, at least as the Constitution applies to government regulation of economic activity.
Professor Kerr was right in saying that this commentary has an echo "with certain political movements." In fact, there is probably no hotter political topic in this year's presidential and congressional elections than the issues of whether the government in Washington has grown too big, and whether there is far too much regulation of business.
Judges Brown and Sentelle traced their complaint back to a Supreme Court decision in 1934 (Nebbia v. New York), and, especially, to a Court ruling in 1938 (U.S. v. Carolene Products). Their real grievance, though, seemed to be centered on the Carolene Products decision because there, they said, "the Court relegated economic liberty to a lower echelon of constitutional protection." Regulation of economic activity now is judged by the most lenient constitutional standard.
Their opinion perhaps was intended to prick the conscience of the Supreme Court, to get it to re-think the constitutional hierarchy of protection. Given that the Court has not changed its thinking on this subject over nearly eight decades, though, it is far from clear what pressure from below could do to turn the Court around.
There has been a widening spread of academic literature questioning the post-New Deal Court's treatment of economic activity, but one might doubt whether adding judicial voices to that challenge will add a great deal to its persuasiveness.
But it does seem that the complaint of Judges Brown and Sentelle is not an isolated phenomenon. Indeed, Judge Brown and two of her Circuit Court colleagues have engaged in blistering critiques of the Supreme Court's rulings in recent years on war-on-terrorism issues.
If this is a growing trend, one searches somewhat uncertainly for the cause. Could it be that the politicization of the judicial nominating process, with ideological purity now perhaps more important than professional merit, has led more judges to go to the bench in pursuit of ideological agendas? In short, is the judicial now becoming, more often, the political? Polls show that the public now believes that this is so.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
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