Public Trust in the Judicial System:

A story in Saturday's Boston Globe reports:

The chief justice of the state Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, "No red states here."

The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement.

"The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen," Marshall said. "The reference to 'red states' was not part of my written, prepared speech. I regret the comment, and I apologize for it. I did not intend to say anything of a political nature."

The commission said Marshall's statement resolved the complaint filed after the graduation. . . .

I had blogged about this item when her speech was first covered in May, and drew a connection to the substance of her speech, which criticized certain public criticism of the judiciary:

[A] Boston Globe article . . . starts with:
The chief justice of the [Massachusetts] Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.

Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court's 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University's 54th commencement. . . .

[Marshall] said she is not concerned about criticism of individual judges or decisions, but about "attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence."

"I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

Well, I'm not wild about "vague, loaded terms" like "judicial activism," either; I think complains about "activism" are often quite imprecise, and conceal more than they reveal. Yet "judicial independence" is often a "vague, loaded term," too. Judges should surely be independent of some things -- for instance, the risk that they'll be fired by political figures -- but not from other things, such as public criticism, and decisions being overturned by constitutional amendment. Other questions, such as whether judges should be independent of voter reaction, through recalls or other means of removal through the ballotbox, are more complex, but they can hardly be resolved either through slogans such as "judicial activism" or "judicial independence."

Nor am I particularly moved simply by claims that criticism is "threatening public trust in the judicial system." It seems to me that many judicial decisions -- such as the Massachusetts Supreme Judicial Court's same-sex marriage decision -- are threatening public trust in the judicial system, too. That itself doesn't make the decisions wrong: Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system.

But the same applies to public criticism; that criticism undermines public trust in the judicial system doesn't make it wrong. And while "gratuitious attacks on judges" (which the chief justice particularly criticized) are by definition unsound (in this context, I take it that "gratuitious" means "unfounded"), an argument based on this claim is assuming the conclusion: Surely critics of the courts would say their criticisms are quite well-founded, and not gratuitous. Now I suspect that the chief justice's full argument was more sophisticated and thorough than that, but the Boston Globe's seemingly quite friendly rendition of the argument struck me as unpersuasive.

Finally, one item that particularly stood out . . .:

Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states" -- winning a big laugh.

Yes, I realize that it's a joke; but as with many jokes, I take it has an element of truth to it. Do you suppose that when a chief justice of a nominally nonpartisan state court jokes at a commencement that she's pleased that Massachusetts votes Democratic, that too might help undermine "Americans' trust in the integrity of our judicial system"?

An off handed comment during an exhuberent celebration. Can you say Tent Lott. She needs to follow Lotts lead and resign her leadership role.
12.5.2005 2:08pm
byrd (mail):
It wasn't part of her prepared speech, it came straight from her heart. Therefore, we shouldn't mind.
12.5.2005 2:12pm
Yes, following the Lott precedent, everyone who ever draws criticism for an offhanded comment should resign. Another excellent contribution to the VC from the singularly lucid "corngrower."
12.5.2005 2:20pm

Define the difference between the the statements of Margaret and Trent.


BTW Great editorial comment. (?)
12.5.2005 2:43pm
tefta (mail):
I'd bet those who planned the event were making a deliberate political statement by not including red balloons. They lost an opportunity to make it a red, white and blue occasion to celebrate our great diversity. Isn't that what the Kool-Aid drinkers are always yapping about. The rainbow of the multi-culties doesn't include those who disagree politically. The lunatic left are truly advanced victims of BDS.
12.5.2005 2:43pm
Nobody Special:
...or they could be the SCHOOL COLORS tefta.
12.5.2005 2:44pm

Of course the Cheif Justice authored an opinion that has no basis in law or Constitution. But. Hey. why split hairs?
12.5.2005 2:49pm
Eugene Volokh (www):
Folks: I don't mean to sound cranky or rude, but I wonder whether we might elevate the discussion a bit, and focus more on substance and less on rhetoric, epithets, sniping at other posters, sarcasm to which there are obvious substantive counterarguments, and the like.

Incidentally, I do believe that white and blue are indeed Brandeis's school colors (or so a google search for "Brandeis school colors" suggests).
12.5.2005 2:51pm
Al Maviva (mail):
Nothing quite like an inadvertant window on the soul, is there?
12.5.2005 2:51pm
I've always wondered about some judges' sensitivity towards criticism. Why shouldn't they be accountable for their actions like anyone else? They claim to need insulation from consequences because they don't want political retribution for decisions they must make based on the law and not on favoritism. But that assumes that they are perfect actors, never engaging in favoritism and always applying the law carefully, no matter where it leads. They aren't, and they should be called on it when they make stupid decisions.
12.5.2005 3:01pm

That is the point of this post. The Cheif Justice entered into the realm of politics. BUT...somehow a judge is immune from political critic, even when the judge opens the door.
12.5.2005 3:07pm
Uncle Pavian (mail) (www):
Our chief justice made a similar comment a couple of days ago here in Kansas. I commented on it at the time here.
12.5.2005 3:09pm
JosephSlater (mail):
Was there similar outrage (or measured criticism, in the case of EV's original post) here when it was reported that Sandra Day O'Connor's reaction to initial reports that Gore won Florida in 2000 was "oh, that's terrible"?
12.5.2005 3:11pm
Richard Aubrey (mail):
Well, as others have said, we now know what she really thinks.
I guess celebratory occasions are better than sodium pentathol.

Can we trust her? Now that we know how she thinks of red states and, presumably, how red states think?

Better to keep your mouth shut....
12.5.2005 3:12pm
Dan Jacob (mail):
I can confirm, as a Brandeis graduate, that indeed the school colors are in fact blue and white. Also, as a Brandeis graduate, I can also say that in all probabilities the audience was composed of 85% left-leaning parties. Brandeis is quite a liberal bastion (for good or for bad - I'll stay in the middle on that debate). When I graduated in 2004, we had James Wolfeson, then President of the WTO, give the keynote address. Even though he was a Clinton-appointed, left-leaning WTO president, there was a sizeable student contingent within the graduation ceremony protesting his speaking. I know this is somewhat tangential from the discussion, but I thought this could flesh out the circumstances of Chief Justice Marshall's speech and the nature of the audience she probably spoke in front of.
12.5.2005 3:14pm
As a Brandeisian, I can attest that, yes, Brandeis's colors are Blue &White. (Same as the Israeli flag.) And, the Brandeis joke really is about Brandeis -- this is the school of Abbie Hoffman and Angela Davis! (More timely, Jack Abramoff also is an alum.)

Unrelated, the Cote-Whitacre case will likely be decided relatively soon . . .

(Sorry: I've got nothing of substance to really add.)
12.5.2005 3:18pm
JohnO (mail):
I have never understood the complaints of the judiciary when their rulings are criticized by members of the political branches. Judges criticize legislatures and the executive all the time. They strike down laws by calling them "irrational."

The comments that can be seen as suggesting violence against judges is obviously wrong, but I don't have any problem with a member of Congress calling a Supreme Court decision dumb, ill-considered, or a usurpation of rights that ought to belong to a co-equal branch. Heck, the Roberts hearing involved long portions where Senators openly criticized Supreme Court decisions and particular justices by name.
12.5.2005 3:18pm
Not only did I have nothing to add, I merely repeated the post above me!
12.5.2005 3:19pm
ProCynic (www):
I think part of the problem may be that there really is no concept of reasoned criticism of the judiciary anymore, because of a construct that we have created ourselves. Let me explain.

Criticism of the judiciary can be broken down into two categories -- those by members of the legal profession, and those by the public at large who are not trained in the law. Of those two categories, the second is typically written off by many members of the legal profession as coming from people who don't understand that law. That leaves the former.

And the former, members of the legal profession -- lawyers and judges -- are typically prohibited from criticizing sitting judges by the Rules of Professional Conduct. You can attack individual decisions, of course, but only as to the law and only in the most deferential tone imaginable. You can't criticize a decision, for example, as "nonsense." An Indiana attorney was once so angry about a judge's decision that he crumpled it up and threw it away ... on camera. If memory serves, he was censored. I didn't exactly support the guy, but his action certainly did not sound unreasonable.

Even worse, this policy means that an attorney cannot point out certain positions consistently held by judges that the public at large would find objectionable. If a judge consistently releases dangerous felons on technicalities, the prosecutor can't point that out. If a federal court judge consistently rules that you can't mention "God" anywhere in the public, at attorney can't point that out to show how out of touch the judge is.

In short, those without law degrees who criticize judges are dismissed as unqualified. Those who have law degrees and are qualified are prevented from doing so by the Rules of Professional Conduct. While the logic behind the rule is understandable, I wonder if it has created a belief among the judiciary that they are above criticism and have given them no understanding as to how to handle it or the proper role for it. Such a belief certainly does not serve the concept of good government.

Best of luck,

12.5.2005 3:26pm
I think there is this fantasy that we used to live in a Golden Age where judges handed down wise, reasoned decisions, and in return, everyone accepted the results unquestioningly and went about their business. One could point to literally millions of pieces of contrary evidence, though. Take a look at FDR's speech to the nation regarding his court-packing plan, for instance.

I do think there is a spectrum of criticism, and that it's a strawman to suggest that judges are attempting to stifle any and all disagreement. On the one hand, you have people arguing that the court got it wrong, that the judge impermissibly inserted his or her personal views, etc. And on the other hand, you have people like Senator John Cornyn who actually excuse acts of violence against judges and their families, on the theory that if those judges weren't so durned activist, maybe people wouldn't want to blow their heads off. Somewhere in between the polar extremes is the line of acceptable criticism.
12.5.2005 3:41pm
Margaret Marshall's comment regarding "red states" is neither here nor there, it is simply a result of spending one's life in a one party bubble.

What is much more troubling in her address at Brandeis is her claim that "Our courts function as a pressure valve to defuse political and social tension." and her attempt to deflect criticisms of such claims.

Evidently, she sees herself as a shaper of policy to right the countries wrongs. Of course those wrongs would be in the eyes of the beholder with the power, like Margaret. And she wants this power absent criticism from other members of government ostensibly responsible for acting as some minimal check on the judiciary.

She wants the cake, she wants to eat it and she wants no criticism for the excess poundage from eating all of that cake.

12.5.2005 3:42pm
There's also a difference between prejudice and "post-judice".

If I were a moderate, 100% committed to unbiased and careful legal analysis, state supreme court judge, and I were to decide carefully and unbiasedly that the state constitution required gay marriage, I'm sure that within a few weeks the hate mail would lead me to start making jokes about red states, too.

Note -- I am _not_ defending her legal record, nor am I sufficiently familiar with it to do so. But I sometimes wonder if the hate mail/right-wing excoriation is one reason that judges tend to drift on the bench. When a new Republican justice makes a minor liberal noise, he/she will experience both a pull from New York Times applause and a push from James Dobson, Pat Robertson, etc.
12.5.2005 3:43pm
Dave Hardy (mail) (www):
They strike down laws by calling them "irrational."

And strike down administrative rules as "arbitrary and capricious," and sometimes lower court rulings for being an "abuse of discretion."

I always thought the judicial lexicon needed some politer terms for those. A layman reading of an "arbritrary and capricious" decision thinks of tyranny, or at least of some bureaucrat flipping a coin or making a rule because he was in a bad mood that day. "Abuse of discretion" sounds like an impeachable act. "Clear error" is a bit nicer, since it just makes the judge sound like a lunkhead. But what is really being expressed is closer to "got it wrong beyond dispute (at least in our eyes)."
12.5.2005 3:49pm
Thorley Winston (mail) (www):
Was there similar outrage (or measured criticism, in the case of EV's original post) here when it was reported that Sandra Day O'Connor's reaction to initial reports that Gore won Florida in 2000 was "oh, that's terrible"?

Got a cite for that?
12.5.2005 3:53pm
Karl Maher (www):
No cause and effect you could ever pin down here, of course, but I would point out that Massachusetts is one of just three states left in the U.S. with unfettered tenure (I'd call it lifetime, but there's a mandatory retirement age). In the other 47, Marshall's remark -- not to mention the gay marriage decision -- would be subject to review by a higher authority. Elections and other forms of review have a sobering effect on judges. Massachusetts should give it a try.
12.5.2005 4:06pm

If I may steal the quote from bluecollarguy This is a person with a law degree elevated to judge.... and...eventully elevated to the Cheif Justice on the Mass. supreme court that deems their mission as to function as a pressure valve. As to a response to an above quote, I think that judge should adjudicate the stateutes in effect to see if they square with the constitution. Seem Ms Margaret has set herself out as a define body of 'morals' .

What is much more troubling in her address at Brandeis is her claim that "Our courts function as a pressure valve to defuse political and social tension." and her attempt to deflect criticisms of such claims.

Silly me! I Thought I got to do that through my elected representitives.
12.5.2005 4:07pm
Regarding the O'Connor quote, extensive citations are collected here.
12.5.2005 4:09pm
Nobody Special:
At the same time, ask yourself why she then proceeded to stick around until after the 2004 election, which was rather in doubt.
12.5.2005 4:20pm
JosephSlater (mail):
Postscript, thanks; Thorley W., satisified?

Let me be clear: I honestly don't think either O'Connor's quote or Marshall's quote is a particularly shocking. But if you think the latter is, you should really think the former is.
12.5.2005 4:29pm
Thorley Winston (mail) (www):
Steve wrote:

And on the other hand, you have people like Senator John Cornyn who actually excuse acts of violence against judges and their families, on the theory that if those judges weren't so durned activist, maybe people wouldn't want to blow their heads off.

Which is a lie of course because Cornyn did no such thing.
12.5.2005 4:37pm
Brooks Lyman (mail):
Margaret Marshall may sincerely "regret" the joke, but as previous comments point out, it came from the heart - that is, it was a political liberal's joke to what she (doubtless fairly correctly) assumed to be a politically liberal audience.

Personally, I don't see what the fuss is about. I happen to think that she's unqualified, in part because of her apparent inability to keep her personal political and ideological opinions out of her jurisprudence and should not be an SJC Judge, let alone Chief Justice, but if she keeps her personal opinions out of the courtroom and her judicial opinions, she can say whatever she wants in other settings.

Of course, by doing so, she exposes herself to criticism from those who don't share her personal opinions, but that's life....

Brooks Lyman
12.5.2005 4:38pm
Eugene Volokh (www):
Most judges, like most other people, prefer one or the other party. People surely understand that.

The convention is generally that judges aren't supposed to make public statements in favor of one or the other party, because such statements unnecessarily stress their political views, and because they can be seen as placing the judges' official positions behind one or the other party. On the other hand, in private conversations over dinner or cocktails, judges -- like others -- are generally not expected to hide all their partisan preferences. Marshall's statement was in a public speech; O'Connor's was in a casual conversation at a party, presumably among social acquaintances. We rightly expect, more guarded comments in the former than in the latter.
12.5.2005 4:49pm
Justin (mail):
Scalia has several times over commented with humor over why its a good thing bush was re-elected. In an audience that I was a part of, Kozinski said in response to a point that Judge Reinhardt made about how GOP nominees are now in charge of the court system "that this is a good thing"

this is much ado about nothing in my view.
12.5.2005 4:58pm
Phutatorius (www):
I was pleased to read Justice Marshall's defense of judges and judging, and the fact that she dared to make a playful reference to ideology in no way qualifies the pleasure I initially took from her speech.

Judges have to decide cases. They're nominated to do it by Presidents and Governors, asked to do it by litigators. By definition, somebody is going to be unhappy with every decision a judge makes. Sometimes those decisions percolate up to the politicians, because they come on issues that matter to their constituents. And then we hear, from the side that lost the case, about how awful and out of control judges are.

The thing is, judges are more principled in their decisionmaking than the political branches are, and for the most part, they act responsibly. They are required to review, engage with, and follow, distinguish, or overrule legal precedent. If they depart from precedent, it's not done lightly, and not without sound legal analysis and underlying logic. Judges have to justify their opinions in writing, in a strict formal style that has been institutionalized over time. Legislators justify their votes with rhetorical appeals and soundbytes.

Should we be shocked and appalled that Justice Marshall has her own political opinions? How could you practice law at her level and not develop an ideology? There's this orthodoxy that judges can't step to a podium and say what they think, lest they make themselves susceptible to a challenge to their "objectivity." Well, here's something: nobody is purely objective. For my part, I'd like to know what kind of person is living behind that bench. The more transparency, the better.

The fact is, there aren't that many people leaping right now to the defense of judges. It's a one-sided argument. The mantra you hear from Washington when a SCOTUS nominee is introduced: he/she will strictly [and robotically] apply the law [and will exercise no judgment at all] -- we promise. I think it entirely proper that someone like Justice Marshall weigh in on what the proper role of a judge is. Somebody needs to counter the neverending flow of criticism from ideologues on both sides about how awful judges are. The left criticizes "conservative" judges, and the right criticizes "liberal" judges. No surprise there, but who fights back? A bizarre culture has emerged wherein judges, who used to be among the most respected professionals in the country, can't look sideways without Pat Roberton praying for them to die. I'm all for open debate, and I would not insulate judges from criticism, but I think it's high time someone discussed their predicament and gave them some props for the work they do.

As a general matter, we recognize that everyone is entitled to his or her opinion. It's ironic that, of all people, we should exclude judges from that axiom -- given that their opinions are, because of institutional requirements, more well-considered, rational, and respectful than those that we get to kick around on the Internet all day long.
12.5.2005 5:09pm
Scant weeks after a well-publicized courtroom shooting in Georgia, not to mention the brutal murder of a federal judge's family in Chicago, Senator Cornyn made a speech about how people are becoming frustrated by liberal judicial activism, stating: "there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share."

Suggesting that the murder of judges and their families is understandable in light of recent objectionable decisions is a reprehensible position, regardless of whether one couples it with empty platitudes like "certainly without any justification." If he had attempted to justify the actions of the 9/11 terrorists, and then casually tossed in at the end that their actions were unjustified, I'm quite certain you would understand the problem. If someone shot a police officer, would you consider it appropriate to muse about whether these things happen because some police act abusively?
12.5.2005 5:43pm
tefta (mail):
Marshall said: "The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen,"

Getting back to the topic, she connected exuberance and a celebratory feeling with the lack of red states. Wouldn't
people with red state issues be at a huge disadvantage in her court?
12.5.2005 5:45pm
Thorley Winston (mail) (www):
For those who prefer not to rely on a Dowdified-version of Coryn's remarks, I would suggest following the link to Corwyn's remarks that I provided in my last comment.

Needless to say, Steve was lying when he said that Cornyn was excusing acts of violence against judges and their families as anyone who actually read Corynyn's full remarks would easily recognize.
12.5.2005 6:03pm
JosephSlater (mail):

First, I note Justin's point that Scalia has said publicly that it's a good thing Bush was elected. Second, although I understand the private/public distinction in some contexts (I wouldn't post on a blog everything I say to my wife), O'Connor was at a party where at least some folks thought it appropriate to repreat her remarks to the press. That sort of social event happens all the time in the world Supreme Court justices move in. I don't think it's comparable to the types of dinner parties that, say, I have. So I don't think the distinction in circumstances is all that great.

Again, I think it would have been better practice if neither O'Connor nor Marshall said what they said, although again I'm not sure this is a big deal.

A point nobody has mentioned thus far is that state court judges often run either explicitly or implicitly endorsed by one or the other political party. When a judge runs as a Republican, is it unusual or inappropriate for them to say generic pro-Republican things?
12.5.2005 6:07pm
John H (mail) (www):
I think the celebratory feeling was very telling - presumably they invited her and were cheering her for her Goodridge decision, and she was basking in her hero status among the young liberal Brandeis crowd. They recognized not the impersonal inevitable logic of the decision (because there really was none) but her courageous personal activism. Everyone understood that she personally was responsible for bringing gay marriage to Massachusetts as she promised at the Gay and Lesbian Bar Association Dinner a year earlier.
12.5.2005 6:11pm
Thorley Winston (mail) (www):
Getting back to the topic, she connected exuberance and a celebratory feeling with the lack of red states. Wouldn't people with red state issues be at a huge disadvantage in her court?

I think Eugene Volokh hit it on the head when he distinguished between a private remark versus one made in public (also wishing for a particular candidate from your party to win is a bit different than making a derogatory generalization about people from the other side of the Ditch).

That being said, I can't see trying to make a big deal over a stupid attempt at humor that was made because she thought she was in "safe" company. I'd chalk it up as Margaret Marshall acting like a jerk and leave it at that.
12.5.2005 6:21pm
cdow (mail):
As a native of Massachusetts, I'm sick of all of the disparaging liberal charicature we get. Justice Marshall was appointed by a Republican governor, Bill Weld.

People who charaterize the same-sex marriage decision Aas judicial activism fail to take into account that Massachusett's Bill of Rights, the oldest in the country, is more expansive than that in the U.S. Constitution. The notion of same-sex marriage continues to be met with public acceptance, and attempts by the legislature to change the decision were rebuffed. Maybe we Massachusetts Rerpublicans are throwbacks, to a time when the party waws more tolerant, open-minded, and less driven by social conservatives.

As for Brandeis, it's a very liberal school, so the remark is not surprising given the audience.

And why is it that the people most opposed to the Massachusetts judicial decisions on same-sex marriage don't live anywhere near Massachusetts? Shouldn't Massachusetts be left to decide its marriage laws for itself? Isn't that wehat federalism's all about?
12.5.2005 6:27pm
Harriet Miers' Law Partner:
To borrow a canon from statutory construction, the general cannot control over the specific. Chief Justice Marshall's comment was extremely general and cannot, on its face, be connected with any identifiable event, other than a college graduation of an extremely liberal college located in a state that votes for Democrats for president and Republicans for Governor.

Whether Sandra Day O'Connor made the remark in private or not is immaterial. What is material is that the remark was directly indentifiable as connected to the outcome of the presidential election -- an outcome in which she clearly had a personal and private interest. Her remark not only demonstrates that Justice O'Connor had a personal and private interest in the outcome of Bush v. Gore, but indicates her prejudiced view of one of the litigants in her court, and that this prejudice was formed in part by facts not part of the proceeding.

I would note that a Supreme Court justice is required by law to "disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned [and] shall disqualify [herself where she] has a personal bias or prejudice concerning a party[.]" 28 USC 455(a)-(b)(1). Surely even my brethern of the right can see the difference.

(Interesting, too, that while this post focuses on the "sins" of Chief Justice Marshall, none of the conspiracy posts about the story today that Kathleen Sullivan, former Stanford Law Dean, failed the CA bar exam. What a spectacular failure on the legal academy's part today and what a tremendous roar of silence greets this news. Maybe too much time listening to the PhDs you hired instead of some good JDs with a little practice under their belt?)
12.5.2005 6:32pm
Andy Freeman (mail):
> Shouldn't Massachusetts be left to decide its marriage laws for itself? Isn't that wehat federalism's all about?

Do folks married in MA continue to be married in other states?

I note that folks licensed to carry in other states aren't allowed to carry in MA.

Note - I'm not arguing against gay marriage. I'm pointing out that federalism isn't particularly narrow.
12.5.2005 6:35pm
Justin (mail):
12.5.2005 6:45pm
Salaryman (mail):
Phutatorius writes that "everyone is entitled to his or her opinion. It's ironic that, of all people, we should exclude judges from that axiom."

And more ironic still that judges consider it appropriate to decry the rest of us exercising our right to our opinions -- or at least, our opinions of judges.
12.5.2005 6:46pm
bob (www):
In the case of O'Connor's quote, the aspect I find disturbing about it is that it not that it reveals a political affinity, but that it suggests a significant personal stake in the outcome of an election she later helped decide. Who knows? Perhaps she even recognized this herself and remained on the court until after Bush's first term to remove or reduce that potential conflict of interest.

WRT Marshall's comment, I can't help noticing that Justice Scalia (for example) could have made exactly the same remark in the same situation, and that if he had done so, it might also have elicited a laugh. Later, people would post the remarks on the internet. THey would explain that his remarks showed he saw the crowd as hostile, and that they proved he could only treat "people with red state issues" fairly. It seems to me that most of the entries here reveal more about the writers than they do about the Justice.
12.5.2005 6:57pm
Phutatorius (www):
No, Salaryman, that's not it. She was answering criticism and offering an opposing point of view. She wasn't saying that no one should ever criticize judges.

But people are saying, here and elsewhere, that judges cannot ethically state their opinions in public without disqualifying themselves. Therefore, the people best positioned and most inclined to stop the spiraling judge-hating in this country actually *are* pressured not to speak out.

Nowhere did Justice Marshall say that the Tom DeLays of the world should not have a right to speak (in fact, I think you'd find Justice Marshall more kindly disposed toward free speech than most judges). It's an important distinction to make: the one between counterargument and suppression of opposing views.

I'll concede that the "red state" bit was ill-advised. But I'm still right with Margie on her defense of judges. You just wish someone with clout who *wasn't* a judge would get on board with her.
12.5.2005 7:53pm
If an Alabama Supreme Court justice made a "no blue states" joke in a similar situation, reasonable liberals would have laughed it off as a harmless joke (and yes, some would have gone off the deep end like many conservatives did about "red states" remark).

But this wasn't the same as waxing poetic for Jim Crow or saying "No Jews." We have to let judges have a sense of humor, especially off the bench. I'm just sorry she dignified the complaint with an apology.

To any red-stater who took offense, I say, "Get a life."
12.5.2005 8:41pm
Wintermute (www):
Gloating political judges help turn the judiciary into a super-legislature rather than protectors of constitutional rights against tyranny of the majority.

You can tell a (wo)man by the jokes (s)he tells.
12.5.2005 11:14pm
cdow (mail):
If the Goodridge decision was such an act of judicial activism, then how come the Massachusetts legislature failed to pass a constitutional ammendment putting to the voters defining marriage as between a man and woman? I don't think most voters in Massachusetts view the court as a "super-legislature" that subverts the public will.

As for those who advocate elected judges, isn't that how Alabama wound up with Roy Moore? Talk about judicial activism from the right.
12.6.2005 12:24am
Brett Bellmore (mail):
"If the Goodridge decision was such an act of judicial activism, then how come the Massachusetts legislature failed to pass a constitutional ammendment putting to the voters defining marriage as between a man and woman?"

You want a serious answer? There are several.

First, amending the constitution of Massachusetts is a lengthly process, and the court quite calculatedly did NOT give the legislature sufficient time before it's ruling went into effect to accomplish that, even if they wanted to. It wasn't the court's intent that the legislature have the opportunity to simply amend away any constitutional basis for their ruling, rather than comply with it.

And, second, the legislature attempted to amend the state constitution in that fashion ANYWAY, and was blocked from doing so not by the amendment's unpopularity, but instead by the Senate President's parliamentary procedure which prevented the amendment from coming to a vote. It has been widely conceded that, without that trick, the amendment would have passed out of the legislature, and quite likely been approved by the voters, the way so many anti-same sex marriage amendments have been.

Essentially what judicial "amendment" does, is turn a process which is meant to make changing a constitution hard, into a process where keeping it unchanged becomes that hard.

And, finally, if all a judge's ruling does is give the legislature political cover to say "Oh, well, guess there's nothing we can do about it!" to policies they privately like, but the voters oppose, then it's still a subversion of the democratic process. Legislators should vote their consciences, yes, but they should have no devious shelter to hide behind when their consciences differ from those of the voters.

I don't think most voters in Massachusetts view the court as a "super-legislature" that subverts the public will.

I suspect there's a reason polsters ask for people's opinions, instead of just going with their personal impressions. ;)
12.6.2005 6:55am
In Massachusetts, there likely will be an amendment as a ballot initiative in 2008, after the legislative efforts failed. The initiative needs only ~66,000 signatures and 25% of the legislature, iirc. It is still in the collect signatures phase.

prevented the amendment from coming to a vote

I don't know what you mean. The amendment was voted down 39-157. Perhaps you are talking about another amendment of which I was not aware. . .
12.6.2005 7:59am
Brett Bellmore (mail):
I was talking about an earlier occasion; I really don't follow either Massachusetts politics or the same sex marriage fight all that closely, and wasn't aware of the later attempts.
12.6.2005 12:34pm
eddie (mail):
On balance, I think that the relentless media and political attack on judges has done more to undermine the integrity of the judiciary in the minds of the American people more than any statement made by any judge. It is the echoes of this statement, made by persons of your distinction, professor, that amplify and give credibility to the arguments.

You manage to slide very quickly over the actual erosion of our judiciary from within.

For example, the actions of the United State Congress in the Schiavo case did more to undermine both the judiciary and the legislative branches of government than any off hand joke, no matter what little shred of truth you may find therein.

Are we discussing issues here or merely bouncing off the comments made by persons and then coming to generalized conclusions about such statements.

This is so petty that your admonission to stop being petty belies the nature of your original post.
12.6.2005 12:37pm
John Hawkins (mail):
All of this is the inevitable outcome courts wielding more political power. This is what most people mean when they say "Judicial Activism" (or more specifically, the other side wielding political power is Judicial Activism, our side wielding it is just rational, perfectly desirable behavior that makes the world a better place). And it's real -- courts decide far more policy issues today than 50 years ago. You can think it's a good thing or a bad thing, but it is a thing. Witness the rise in donations being solicited for various legal defense/challenge funds. Any major political effort -- especially at the state level -- now needs a litigation plan in place for after the vote, because the losing side is almost sure to challenge in court. So, that's the "Activism" part, and it's real.

But, you can't have political power without commensurate political accountability. That's the "Independence" part. Courts that desire the power to make policy cannot expect to avoid accountability for making unpopular policy decisions. That's called tyranny. Literally. So, we're going through a transition period -- either the courts back off and give up the extra political power they've claimed in the last few decades (i.e. leave controversial issues up to the legislatures), or they submit to increased accountability -- which includes public criticism, partisan affiliation, and the possibility of being fired for belonging to the "wrong" party or for, horrors, making an unpopular decision. One or the other -- judges can't have their cake and eat it too.
12.6.2005 4:03pm