Judicial Etiquette: Why the Justices Should Attend the State of the Union

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In David Lean's film Lawrence of Arabia, a reporter asks the Hashemite Prince Faisal bin Hussein, played by Alec Guinness*, whether his refusal to retaliate for Turkish atrocities is due to the influence of British Major T. E. Lawrence.  Faisal reacts with amusement. "With Major Lawrence, mercy is a passion," he says. "With me, it is merely good manners. You may judge which motive is the more reliable."

As the prince suggests, good manners may be a better guide in times of trouble than our own impulses.

I am thinking about Faisal because of the controversy about whether Justices of the Supreme Court should attend Tuesday's State of the Union Address.  As Dahlia Lithwick pointed out this weekend, the occasion puts Chief Justice John Roberts in an uncomfortable position -- either attend and expose himself to potential partisan rhetoric, or stay away and raise suspicions of  partisanship.  

I despise the current vogue for attributing any adverse judicial decision to "bias."  I think most judges try conscientiously to apply law to facts without much regard for any effect on partisan politics; that extends to those with whom I disagree as well as to those whose opinions I find congenial.

But being a judge involves etiquette as well as integrity.  Both points are covered in Canon Two of the Code of Conduct for Federal Judges: "A judge should avoid impropriety and the appearance of impropriety in all activities." A judge may know he or she is being fair, but others can't see the judge's heart and they must evaluate actions.  And a certain sloppiness of action has lately crept over the federal bench.

Being a federal judge is a pretty good gig: life tenure, indoor work, brilliant clerks to do the heavy lifting.  And, oh, do judges get respect!  Alone among powerful officials, a judge is virtually never required to defend his or her official actions.

When I was a federal judicial clerk, the judges I knew were fairly careful to observe Canon Two:  avoid financial conflicts; don't involve yourself with partisan politics; don't speak about cases that the Court is deciding or has just decided; don't rise to the bait when criticized.  (Not that criticism didn't sting; the judge I clerked was still furious a quarter-century after the local newspaper accused him of "raping the Constitution."   But for him, the answer to hostile critique lay in careful judging, not in matching blow for blow.)

A number of current judges seem by that standard to be, well, cutting corners.  Judge Richard Posner of the Seventh Circuit* gratuitously injected into a recent opinion an entirely inappropriate endorsement of legislation then pending before Congress to strip citizenship from American-born children whose alien parents lack green cards.  Judges are hired to interpret the law, not to participate in the legislative process -- and certainly not to signal how they would rule on proposed laws. 

District Judge Martin Feldman of Louisiana struck down the administration's post-Deepwater Horizon offshore-drilling moratorium.  The judge owned extensive energy stocks, including some in companies affected by the moratorium.  He later said he sold those stocks between hearing argument and issuing his ruling. (I honestly don't see how that makes things any better.)  But he still refused a motion to recuse as "without merit."  Perhaps so; but a well-mannered judge would have refused to sit, or withdrawn when the conflict became clear.

Judge Roger Vinson of the Northern District of Florida, who is hearing one of the state challenges to the administration's health-care program, issued a preliminary ruling against the program that openly sneered at the president and Congress, relying on dubious "authority" like a Wall Street Journal op-ed.  Bad manners.  Judge Henry Hudson of the Eastern District of Virginia issued an opinion striking down the program.  The opinion was appropriate in tone; but Judge Hudson sat on the case even though he retained a financial interest in an overtly political consulting firm that had been employed by the named plaintiff in the case.  Gross bad manners.

This brings us to the Supreme Court.  Common Cause last week wrote to Attorney General Holder that Justices Antonin Scalia and Clarence Thomas appear to "have participated in political strategy sessions, perhaps while [Citizens United v. FEC] was pending, with corporate leaders whose political aims were advanced by the decision."  The organization followed up Friday with a letter charging that Thomas had failed to report his wife Virginia's income from the Heritage Foundation. 

I'm not about to get into the murky timeline of the two Justices' involvement with panels hosted by Koch Industries, a major player in the world of far-right political advocacy groups.  I will say that whatever the timing, and whoever paid for the trips, I wouldn't have gone if I were on the Supreme Court; nor would I have gone to similar events sponsored by progressive groups. I wouldn't accept all-expenses paid trips to seminars on law and economics organized by conservative think-tanks. Nor would I attend the conservative events and fundraisers that Justice Samuel Alito attends (read Jonathan Turley's summary here).  And if I were Alito, I would have ignored President Obama's own regrettable display of bad manners -- criticizing the Court directly for a recent ruling while the Justices sat in front of him at last year's State of the Union.  I certainly would not have made faces at the President like a middle-school slacker mocking his Civics teacher.

Justice Scalia, in particular, seems not to place good manners high in his personal hierarchy of needs.  In his public appearances, he acts like -- not to put too fine a point on it -- a lout. On Monday he will teach his version of the Constitution at an event for new House members organized by Rep. Michelle Bachman (R-MN), a polarizing figure who once publicly asked for an investigation of the "anti-American" beliefs of other members of the House.  It is as if a justice in the 1950s had spoken at a caucus organized by the late Sen. Joseph R. McCarthy (R-WI).  It raises questions about impartiality.  It raises concerns about the separation of powers.

It is, as my Georgia-born grandmother would have said, tacky.

Scalia's rudeness is a lifestyle choice. His hunting trip with Vice President Dick Cheney was rude; his subsequent comments were worse. "For Pete's sake, if you can't trust your Supreme Court justice more than that, get a life," he told a questioner at a public event who raised the propriety of going shooting with an official who had a high-profile case pending. Scalia added, "I think the proudest thing I've done on the bench was not to allow myself to be chased off that case." ("Chased," you see -- Scalia is the victim here.)  He also dismissed questions about Bush v. Gorewith a snappy "get over it!"  

It's worth noting that both "get a life" and "get over it" are expressions added to our language by petulant 13-year-olds. A public official who demands trust but responds to questions with taunts is being hypocritical. "Nonny-nonny-boo-boo" is not truly a judicial attitude.  

Arrogance and partisanship by federal judges are hardly new.  Justice Samuel P. Chase, an 18th century curmudgeon known as "Old Bacon Face," was nearly removed from the bench for his improper involvement in prosecutions of Jeffersonian editors.  Two Justices of the Taney Court surreptitiously collaborated with President-elect James Buchanan to shape their opinions in Dred Scott v. Sandford to Buchanan's political advantage.  The ultra-conservative "Four Horsemen of the Apocalypse" tried to derail the New Deal.  Justice Abe Fortas frequently consulted with President Lyndon B. Johnson on points of political strategy.

But none of these examples is terribly reassuring.  Chase was a monster.  Dred Scottis an enduring blot on the Court's reputation.  The intransigence of the Horsemen plunged the Court into the worst crisis in its history.  Fortas left the bench amid scandal over his own financial involvement with a millionaire.   

What would you do if you were Chief Justice Roberts?  No one doubts that he has deep philosophical differences with the Obama Administration, as well he might.  But he is also the head of the federal judicial branch, and he seems to takes his institutional responsibilities as seriously as his own views.  As head of the institution, then, he might consider it his duty to be present even for some tedious or unpleasant public events.  He might also consider asking the divas with whom he sits to come and sit in their front-row seats without throwing spitballs. Or he might decide that the risks to the institution were greater from attending than from staying away.

But whatever happens Tuesday, a Chief Justice could use his influence to remind his charges of the two aspects of Canon Two. Roberts has politely called on Congress to stop its partisan irresponsibility with vacant judgeships, and God bless him for it; he might also call on judges to temper their passion with good manners. 

Thumbnail image credit: Alex Wong/Getty Images

------------------------------------------------------------------------------------------------------------------------------------------ This post originally stated that Alex Guiness played Prince Faisal and that Richard Posner served on the Sixth Circuit. We regret the error.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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