05/19/2014 11:10 pm ET Updated Jul 19, 2014

Judges and 'Speaking Out'

A controversy is brewing. Judges are talking to the "real world" on real world subjects! And the current "face" of the controversy - an old school gentleman; a veritable prototype for what most would think a judge should look like, sound like and, more important, be like. Yes, Justice John Paul Stevens, 94 years old and retired of the Supreme Court of the United States, is at the pulpit.

Shocking! He is in favor of legalizing marijuana; he believes the Second Amendment can be fixed; and his newest book is entitled Six Amendments: How and Why We Should Change the Constitution. And let's not even talk about campaign finance. But, what is the complaint? Yes, he is permitted to, maybe even encouraged to -- just like his former colleagues, Sandra Day O'Connor and David H. Souter -- hear cases, should he want to, but Justice Stevens has not shown any interest in so doing. And if he has?

Justice O'Connor -- for her part -- periodically sits on the Ninth Circuit Court of Appeals; Justice Souter occasionally sits on panels of the First Circuit. Unlike Justice Souter, who has religiously stayed out of the public eye on issues of public interest or policy, and has actually retained his somewhat cloistered existence except for Circuit appearances and in the opinions he writes, Justice O'Connor "makes the rounds." She regularly speaks out on issues of public interest even though she sits on the bench from time to time. Although -- and this may be the point -- she seems to have limited her comments to issues of court reform, which is generally encouraged, or at least accepted by the bar.

But really, what's the big commotion about Justice Stevens' new-found public persona? Is it that he "speaks out" while still being called "Justice" -- even though he shows no signs whatsoever of ever again sitting on a case? Would the emerging controversy about him fizzle out if he simply wrote a letter to President Obama or Chief Justice Roberts saying, in paraphrase: "I will keep my title but I am quite through as a sitting judicial officer. Adios -- And, indeed, I've accepted a gig on MSNBC?" If that would be the end of the controversy , indeed -- maybe that would be what some would think he should do.

But -- would that be the end of it? Would those who criticize Justice Stevens' public statements and writings, particularly concerning public financing of elections, stop just because they could be certain he would have totally ended his career as a judge? Or would they still argue that he steps over the line by "trading" on his title as a retired Supreme Court Justice?

Still, is there something different about being a former Supreme Court justice than there is being, for example, a former president or a former speaker of the house? Indeed, these men have received tons of money from their appearances after leaving office. And, make no mistake, while Justice Stevens has sold books that address legal controversies, he has never represented any client that has benefitted from the public positions he has chosen to articulate.

But there's a broader question at issue. Why should we want to deprive our nation of the thoughts of brilliant minds such as those possessed by the likes of Justice Stevens simply because they have held, or even hold, judicial status? Clearly, even if Justice Stevens had not retired from the judiciary and chose, let's say, to sit periodically on the Seventh Circuit from which he was elevated to the Supremes in 1975, it would be easy enough for him to recuse himself from a campaign finance case if one coincidentally showed up on his docket, assuming he believes it is appropriate to do so. The same holds true if a litigation regarding court reform were to reach Justice O'Connor's docket when/if she chose to sit on a Circuit Court panel.

And there's the even broader issue. Why should judges -- sitting or retired -- be constrained to a life of silence? Shouldn't they be free to speak out on gun control, drug policy, affirmative action, race policy, foreign affairs, even if a case may theoretically someday come before them? Agreed: in the instance of Supreme Court justices who might speak out, the need for recusal -- which may indeed occur if a Justice has publicly opined on one side of an issue or another -- may directly impact a case before the Court, particularly if a recusal might result in a 4-4 split. Perhaps they should be held to a more monastic standard.

Not so, though, in the case of lower or intermediate courts. Indeed, most district courts and state trial courts have sufficient numbers of sitting judges to take up a case if one trial judge recuses herself, and that is certainly the case for circuit courts. We don't ask or require members of the executive or the legislative branches to abstain from speaking out on issues that come before them in their official positions. In fact, we effectively encourage them to -- because more than most of the citizenry, they likely have something worthwhile to say.

And although, concededly, judges are different and must show constraint if they have cases then-pending, why must they exhibit such constraint when a case is not before them? Why can't they tell us what they think on pivotal issues that impact society when they have the available safety valve of recusal if a case is assigned to them in their judicial capacity and it is not appropriate for them to sit? Take Judge Richard Posner of the Seventh Circuit, who has written more widely on public policy issues than any other judge in the nation -- quite stridently and even controversially, on occasion. Yet, by his count, he was asked to recuse himself twice. Twice, notwithstanding more than 30 years on the bench and 6,000 cases.

Needless to say, nominated justices and judges -- particularly, in a post-Bork era -- reflexively decline to answer probing questions by senators during confirmation proceedings on the grounds that the issue is ripe and may (theoretically) come before them should they get confirmed (and not, as is likely actually the case, because the "wrong" answer -- or its sound bite -- would be the lead on our 24-hour news cycle, causing protests, blogs, editorials, petitions and all other forms of incursion). Members of the Senate Judiciary Committee have pretty much come to accept that their probing questions will not actually be answered, and are largely asking the questions for their own political purposes.

But back to the issue of judges -- sitting and retired. Should we really want judges unwilling to offer public opinions on issues just because a matter might come before them? Do we instead want judges who are, or pretend to be (I am not sure which is worse) tabula rasa, making a determination solely based on the information spoon-fed to them by counsel? Or can we all acknowledge that the judge we appear before -- maybe -- has thought about the subject, which may allow us to engage in intelligent dialogue and maybe even change his mind? After all, isn't that what you hire an advocate to do?

So let's not be afraid -- or worse, appalled -- at judges' speaking their minds. They often have a lot to say that is worth listening to. True, there are currently in place rules of conduct for judges that discourage or even forbid judges from making public comments on controversies that are "likely to come before the court," or are pending or impending before another court anywhere in the United States.

We certainly don't wish to encourage judges to violate the rules in place. Maybe, though, it's time for a serious public conversation about what amounts to somewhat of a muzzle that the protocols place on perhaps the "best and brightest" men and women society has to offer. Indeed, the mild dustup involving Justice John Paul Stevens may be just the place to begin.