Politicians who criticize judges are front and center in the news right
now. Donald Trump called a federal judge who temporarily suspended his
immigration ban a “so-called judge” whose decision was “ridiculous.”
Closer to home, House Speaker Richard Corcoran called for term limits for
state judges. Among other things, Corcoran said judges need to be restrained
because their decisions are “an edict from on high” and they
just write law out of “whole cloth.”
Politicians know judges are easy targets for one simple reason: they can’t
counterpunch in response to political attacks. Judges are bound by rules
of ethics which essentially prevent from defending themselves against
mudslinging. They cannot comment on social media about legal or political
matters. They cannot match wits with critics in television interviews either.
Judges are also bound, as they should be, not to comment on cases pending
before them. They are only permitted to speak to the public through the
opinions they write. This is a practical disadvantage: many judicial opinions
are technical, bland, and loaded with citations. And while people can
find snarky comments on social media in moments, many don’t know
how to find - much less decipher - published court opinions.
Furthermore, court opinions are out of sync with the current tone of debate
in our political culture. Appeals court judges and the lawyers who appear
before them still put a premium on civility and decorum in the things
they write. Thus, people who are amused by controversy and name-calling
usually won’t find much to giggle at in court opinions.
There are some exceptions, of course. The opinions of the late Justice
Scalia were often colorful and quotable, whether you agreed with the substance
of them or not. Nonetheless, on average it’s much easier to read
Twitter blasts than slog through the jargon of a typical court opinion.
Judicial opinions can be tough sledding for even the most intelligent
This is not to say judges should be immune from criticism. Judges are human,
and they make mistakes just like any one else. Thoughtful, reasonable
critique of judicial decisions is a healthy part of public debate. However,
personal and disparaging criticism of judges who can’t respond is not.
There are many thoughtful, intelligent judges who would probably have plenty
to say in response to political attacks against them. The only reason
you don’t hear it is because they aren’t allowed to say it.