Free Speech

"Resolution of Judicial Misconduct Complaints About District Judge Lynn Adelman"

Judge Adelman's article sharply criticizing the Supreme Court, the Seventh Circuit concluded, was largely permissible under the Canons of Judicial Conduct, except "the opening two sentences of the article and the criticisms of recent policy positions taken by one political party."

|The Volokh Conspiracy |

From Monday's report of the Judicial Council of the Seventh Judicial Circuit:

In March 2020, United States District Judge Lynn Adelman published a law review article entitled The Roberts Court's Assault on Democracy. 14 Harv. Law & Policy Rev. 131. Three complaints were filed under the Judicial Conduct and Disability Act asserting that the publication of the article amounted to judicial misconduct. Chief Judge Diane P. Wood consolidated the complaints for disposition and appointed a committee under 28 U.S.C. § 353 and Rule 11(f) of the Rules for Judicial Conduct and Judicial‐Disability Proceedings. Chief Judge Wood served ex officio. District Judge Robert M. Dow, Jr. served on the committee, and Circuit Judge David F. Hamilton served as chair.

The committee reviewed the article and available information, including Judge Adelman's responses to the complaints, and concluded that there was no need for a hearing for further evidence to resolve the complaints. The committee submitted a report and recommendation to the Judicial Council of the Seventh Circuit, which has approved the proposed resolution of the complaints as set forth below….

The article speaks for itself, but a brief summary will make the discussion of the complaints and the issues clearer. The overall thesis is that over the last fifteen years, the Supreme Court of the United States has issued a number of decisions that have undermined the rights of poor people and minorities to vote and that have increased the economic and political power of corporations and wealthy individuals. The result, the article argues, is a form of government that is not as responsive as it should be to the will of the majority of the people.

Regarding diminished voting rights of poor people and minorities, the article discusses decisions on the Voting Rights Act of 1965, including Shelby County v. Holder and Abbott v. Perez, as well as cases on purges of voting rolls (Husted v. A. Philip Randolph Institute), voter‐identification requirements (Crawford v. Marion County Election Board), and legislative gerrymandering based on party affiliation (Rucho v. Common Cause).

The discussion of corporate power focuses on campaign finance decisions, including Randall v. Sorrell, Wisconsin Right to Life, Inc. v. FEC, Davis v. FEC, Citizens United v. FEC, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Tradition Partnership v. Bullock, and McCutcheon v. FEC. The discussion also addresses expansion of commercial free‐speech rights in Sorrell v. IMS Health, Inc. and several decisions reducing the rights of organized labor, including Janus v. AFSCME and Epic Systems v. Lewis.

Judge Adelman's article argues that all of these decisions, which were resolved by closely divided votes, were decided wrongly and that the cumulative effects of these cases make the United States political system less representative and more fragile, and weaken the economic and political power of the middle class and the poor.

Judge Adelman's article begins:

"By now it is a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball 'umpire who [merely] calls the balls and strikes,' was a masterpiece of disingenuousness. Roberts' misleading testimony inevitably comes to mind when one considers the course of decision‐ making by the Court over which he presides."

At various points the article also focuses on the Republican Party's support for measures to restrict voting rights and to enhance the political and economic power of corporations and the wealthy. The article also describes the party as having become "more partisan, more ideological and more uncompromising." …

The Council's analysis:

The nation has a long tradition of vigorous public debate over Supreme Court decisions, and judges, including judges in the district and circuit courts, have long participated in those debates. Judges are able to bring special insight and perspective to those debates. At the same time, judges also have special responsibilities stemming from their roles in dispensing even‐handed justice in all cases that come before them and in strengthening public confidence in the judiciary….

Canon 4 [of the Code of Conduct for U.S. Judges] encourages judges to write and speak on legal topics, subject to the caution that their activities should not "detract from the dignity of the judge's office, interfere with the performance of the judge's official duties, reflect adversely on the judge's impartiality, [or] lead to frequent disqualification."

Over more than two centuries, the Supreme Court and the federal judiciary have earned substantial public respect for their fairness and competence. The American people have come to trust federal courts to handle some of our Nation's most difficult problems when brought to the courts as cases within their jurisdiction. That trust has not been and cannot be taken for granted. Court decisions have long been the topic of fierce debate, from Chisholm v. Georgia, which prompted adoption of the Eleventh Amendment, through the Dred Scott case (denying rights to blacks and leading to Civil War), Plessy v. Ferguson (adopting "separate but equal" standard endorsing racial segregation), Abrams v. United States (upholding criminal convictions for distributing leaflets criticizing U.S. involvement in World War I), Schechter Poultry v. United States (one of many cases striking down economic regulations enacted under New Deal), Brown v. Board of Education (prohibiting racial segregation in public education), Miranda v. Arizona (requiring warnings to suspects before custodial interrogation), Roe v. Wade (finding constitutional right to terminate pregnancy), Bush v. Gore (stopping state recount of votes for President), and Citizens United v. FEC (striking down federal prohibitions on independent election spending by corporations).

Federal judges are under an ethical obligation to refrain from public comment on cases still pending in court, see Canon 3(A)(6), quoted above, but they also are able to offer the public valuable perspectives on the controversial cases of the day after they have been decided. Federal judges have seen the kinds of disputes that led to landmark Supreme Court decisions. They will be on the front lines of enforcing Supreme Court decisions. Judges also are able to bring to bear their professional skills, experience, and training to evaluate the debates among Justices over the meaning and scope of precedents and other legal arguments made in those opinions.

For example, in 1958, Judge Learned Hand of the Second Circuit delivered the Holmes Lectures at Harvard Law School and sharply criticized recent Supreme Court decisions on constitutional law, including Brown v. Board of Education and several decisions protecting the rights of people accused of being Communists. Judge Hand asserted that the Supreme Court was acting as a "third legislative chamber" and engaged in "a patent usurpation" of powers not properly belonging to courts.

More recently, Judge Richard A. Posner of the Seventh Circuit often criticized

U.S. Supreme Court decisions in published writings (other than in judicial opinions for this court). See, e.g., Richard A. Posner, Foreword: A Political Court, 119 Harv. L. Rev. 32  (2005) (describing the Supreme Court as a "political organ" and describing its "aggressively political approaches covered by a veneer of legal reasoning").

Judges criticize one another's reasoning, sometimes harshly. In fact, much of Judge Adelman's article draws from dissenting opinions in the decisions he criticizes. Nothing said in this decision on the complaints should be interpreted as suggesting that judges should be silenced from criticizing court decisions…..

[But t]he Code of Conduct makes clear that federal judges, with the authority granted by their appointments, have special responsibilities in their public extrajudicial writings and speaking. They need to write and speak in ways that will not interfere with their work as judges. Their writing and speaking also should not interfere with public perceptions that the judges will approach the cases before them fairly and impartially.

In their daily work of deciding cases, judges inevitably decide issues in contentious debates, yet their decisions are widely accepted as the work of competent and conscientious professionals who impartially apply their training and experience to the law and the facts before them. If a particular judge makes statements, on the bench or off, that undermine confidence in that judge's ability to approach cases impartially, such statements impair the ability of the entire judicial system to serve the public and to engender the public's confidence in judicial decisions.

It should perhaps go without saying that it is perfectly possible to disagree and criticize in ways that do not undermine confidence in the professionalism and good faith of those who disagree. At the same time, the judiciary recognizes that there are exceptional cases where there may be legitimate reasons to question the good faith, honesty, and integrity of court decisions. There are unfortunate examples of judges who have not been honest, and detecting and responding to such misconduct is vital for the fair administration of justice. The council is confident, however, that this not one of those cases.

Judges sometimes use harsh language in their disagreements with each other. In criticizing the professional reasoning of colleagues, judges can too easily slide into personal attacks on the professionalism and integrity of those who disagree. Judges recognize this danger. In the overwhelming majority of cases, both on and off the bench, they adhere to standards of civility and collegiality to stay well away from personal attacks, but there are obviously some departures from those standards.

Judges should expect tough criticism of their work. The power conferred by judges' commissions puts them in the forefront of controversy and debate. They and their work will be criticized, often publicly and sometimes harshly. The council does not mean to suggest that judges' language and behavior should descend to the lowest and most personal level the public and profession will tolerate. But high‐profile examples, even in opinions from Supreme Court Justices, signal that in terms of imposing coercive measures of judicial discipline, the boundaries between what is permissible and what deserves discipline are not sharp. In addition, because judges may be both the targets of harsh criticisms, from within and without the judiciary, and the officials who impose discipline, judges have a responsibility to be most cautious about using that power to impose discipline for such criticism.

The vast majority of Judge Adelman's article at issue here consists of substantive criticism of Supreme Court decisions. Those criticisms are well within the boundaries of appropriate discourse. As noted above, much of Judge Adelmanʹs critique draws from the dissenting opinions of Justices in those decisions. Without endorsing or disagreeing with Judge Adelman's views of those cases, the council finds no ground for discipline with regard to the vast majority of the article.

More concerning, however, are the opening two sentences of the article and the criticisms of recent policy positions taken by one political party. The opening two sentences could reasonably be understood by the public as an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases. The attacks on Republican party positions could be interpreted, as the complainants have, as calling into question Judge Adelman's impartiality in matters implicating partisan or ideological concerns. While not addressed by specific rules of judicial conduct, these portions of the article do not promote public confidence in the integrity and impartiality of the judiciary.

Judge Adelman's response to the complaints shows that he appreciates that these portions of his article could be understood this way, and he has tried and remains willing to take voluntary corrective action. He tried to amend the article but was told by the publisher that it was too late to do so. Judge Adelman has offered to take corrective action by publicly acknowledging that some points in the article are worded inappropriately, disavowing any intention to criticize the integrity of the Chief Justice or any other Justices, and reaffirming his commitment to impartial administration of justice, in all cases of any type and with any parties. In addition, there is no link between the controversial article and any decisions by Judge Adelman in any particular cases.

In terms of the specific provisions of the Code of Conduct, the council finds that the article is not political activity prohibited under Canon 5. Most of the article is an example of appropriate, or at least permissible, judicial writing on law‐related subjects under Canon 4. The opening two sentences regarding the Chief Justice and the very pointed criticisms of Republican Party policy positions could be seen as inconsistent with a judge's duty to promote public confidence in the integrity and impartiality of the judiciary and as reflecting adversely on the judge's impartiality.

Drawing back from the particular article to look more broadly at Judge Adelman's career, the council recognizes that he is a thoughtful and hardworking judge who has presided fairly over thousands of cases in his career. He has views on many subjects of law and policy. He also knows that his duty as a judge is to follow the law as it is. He has shown over the years that he decides cases based on the law and the facts, not personal views or inclinations. Nothing in the article or elsewhere indicates that he is not committed to following governing law, whether he personally agrees with it or not.

The Judicial Council concludes that these complaints should be resolved through a public admonition to Judge Adelman that also reminds all judges within the circuit of our obligations to ensure that judges' public speaking and writing do not undermine public confidence in the fair administration of justice. This admonition shall be coupled with an appropriate public statement by Judge Adelman consistent with his response to the complaints, acknowledging that some language in the article went too far, disavowing any intention to suggest a lack of integrity or professionalism by any Justices on the Supreme Court, and reaffirming his commitment to impartial decision‐ making.

{The council's resolution is consistent with the Second Circuit's approach to more serious public comments by Judge Calabresi in 2004. Those comments were reasonably understood as opposing a candidate for president. They also compared President George W. Bush's path to power as similar in some ways to Hitler and Mussolini's paths to power and noted that all three had then "exercised extraordinary power." The Second Circuit Council found a public violation of the Code's prohibition on political activity. The complaints were resolved by a public admonition combined with the judge's public apology. The Second Circuit's handling of the Calabresi case met with approval of the "Breyer Committee," which described the public comments as "serious misconduct." The Breyer Committee noted its new standard that "corrective action should be proportionate to any plausible allegations of misconduct in the complaint," and found the combination of the judge's apology and the council's formal admonition, in the form of its endorsement of the acting chief circuit judge's earlier informal admonition, met that standard by adding "considerable moral and legal force to the reprimand." This resolution of the complaints against Judge Adelman is also consistent with information cited by the Second Circuit in the Calabresi case indicating that such cases are generally handled through corrective action and/or an apology or acknowledgment of the error.}

Complaints like this, about judges' non‐judicial writings, have been rare and should stay that way. There is ample room for federal judges to speak and write about the law, including criticisms of past decisions, without prompting appropriate complaints. Judges should be encouraged to do so consistent with Canon 4 for purposes of public and legal education. At the same time, it behooves all federal judicial officers to speak and write about the law with special care for their responsibilities to the public and to the larger judicial system, including refraining from personal attacks.

Judge Adelman responded:

Thank you for the thoughtful consideration that you and the committee that you appointed gave to the above complaints. I have reviewed the committee's report and recommendation. In response, I first want to acknowledge that, as the committee notes and as I previously conveyed to you, some of the points that I made in the article about the Roberts Court were inappropriately worded. I want to express my deep regret for not being more careful. I never intended to say anything that would impair public confidence in either the judiciary or my own impartiality. As I previously wrote to you, I am strongly committed to the judiciary as an institution and deeply proud of my service as a judge.

More specifically, I apologize for any language that I used that could be construed as questioning the integrity of the Chief Justice or any other member of the Court or as expressing a bias against the Republican Party. As the committee recognizes, the issues that I wrote about are complicated and highly contested, but I did not mean for my critique of some judicial decisions to suggest personal criticism of their authors or of individuals or institutions that have embraced them.

Finally, I want to reaffirm my commitment to the impartial administration of justice in all cases regardless of the nature of the case or the identity of the parties. I have attempted to embody that commitment throughout my tenure as a judge and will continue to do so as long as I  serve.

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  1. A mild slap on the wrist followed by a pro forma and hardly credible retraction of sorts.

    “Move on. There’s nothing to see here.”

    1. Yes. Particularly his “I apologize for any language that I used that could be construed as questioning the integrity of the Chief Justice or any other member of the Court or as expressing a bias against the Republican Party.”

      That’s of course complete BS, as he made an enormous effort to do exactly those things.

  2. Adelman was a cranky old man years ago when I first met him. Sounds like he’s trying to give former Judge Coffey competition for most awful.

  3. Black Robe Wall?

  4. The left doesn’t like Roberts, either?

    1. Nobody like any justice all the time. Everybody hates some justice some of the time.

  5. Thank you Judge Adelman. I have posted at least 4 times on this blog, to make the specific point that Judge Adelman’s commentary fleshes out more thoroughly. The point being that the right way to assess Justice Roberts’ partisan bias is to focus narrowly on his holdings which relate directly to politics and the election process, while putting aside other politically charged cases which do not go directly to the question of election outcomes. Looks like Adelman hit that one out of the park.

  6. To Professor Volokh: Here is a story you might be interested in, a Purdue student has been expelled because of comments on social media: https://www.purdue.edu/newsroom/releases/2020/Q2/president-daniels-announces-expulsion-of-student-maxwell-lawrence.html
    As Purdue is a Public university, I feel this strongly violates the 1st amendment, but I don’t have foreknowledge on expulsions in public schools.

    1. This guy appears not to be the most appealing victim of first amendment rights deprivation. According to a Purdue newspaper he

      sent to a group chat on Wednesday an image with Hitler’s face edited into the middle that read, “How can you tell if a black man is well hung? You can’t fit your fingers between the rope and his neck.”

      and also sent:

      “If all cops are bad then that just means all black people are n—.”

      If these actually were his words he sounds like somebody with some self-destructive impulses. Are these fighting words? Do they tend to incite an immediate breach of the peace?

      1. One drawback of the current absolute prohibition on saying or writing the “n” word is that we can’t tell if he actually wrote the full “n” word or wrote “n—”.

      2. Mr. Lawrence was exercising his First Amendment rights, expressing conservative positions in a pointed manner.

        He seems a relatively standard conservative student . . . School of Agriculture . . . member of Purdue’s nationally ranked bass-fishing team . . . posts videos about fantasizing about running over black protesters while driving to the fishing hole . . . taunts black students with lynching-Nazi jokes . . . future Republican staffer on Capitol Hill . . . uses racial slurs roughly as often as some right-wing legal blogs do . . .

        1. You describe the perfect counterpart to the “standard” progressives, who are currently at work rioting in the streets; looting and then burning small businesses in minority neighborhoods; vandalizing everything not burned; throwing Molotov cocktails into police vehicles; threatening to burn everything down until their demands are met but denying that this constitutes violence; burning down affordable housing under construction; tearing down statues of George Washington, Abraham Lincoln, Ulysses S. Grant, abolitionists and those fighting for the Union; demanding an end to policing.

          1. This student’s speech is violence; the progressives’ violence is speech.

      3. “This guy appears not to be the most appealing victim of first amendment rights deprivation.”

        Unlike the Illinois Nazis? Many victims of first amendment rights deprivations will not be appealing. Those are who it’s needed to protect.

        “Are these fighting words? Do they tend to incite an immediate breach of the peace?”

        Pretty sure those have to be face to face. Otherwise there’s time to cool off before starting the fight.

      4. Yes I absolutely agree he is not an appealing victim of 1A rights violations, but isn’t the point of the 1A to apply to all people? Fighting words are direct antagonization in an inperson conflict, so anything said on social media cannot and will not ever be figured as fighting words.
        If you ask me, this looks a lot like Purdue knowingly violating National law to save face, even if they end up losing in court.

        1. so anything said on social media…will not ever be figured as fighting words.

          Your powers of divination are remarkable.

  7. The vast majority of Judge Adelman’s article at issue here consists of substantive criticism of Supreme Court decisions. Those criticisms are well within the boundaries of appropriate discourse. As noted above, much of Judge Adelmanʹs critique draws from the dissenting opinions of Justices in those decisions. Without endorsing or disagreeing with Judge Adelman’s views of those cases, the council finds no ground for discipline with regard to the vast majority of the article.

    The problem, though, is that he opens by calling Roberts disingenuous and misleading, and spends much of the article disparaging the Republican party, saying they remind him of the “fireaters,” those fervent defenders of slavery who pushed the South into the Civil War, and reminds the reader that then-attorney John Roberts was avidly in their fold. In that context his other remarks sound less like dissenting opinions and more like political diatribe.

  8. The paternalistic-priesthood approach evident in the Rules and in the committee’s report is misbegotten. It’s not the best way to achieve the stated goal.

    To a) “promote public confidence in the integrity and impartiality of the judiciary” it is necessary, but not sufficient, to b) promote the integrity and impartiality of the judiciary.

    And the best way to do both a) and b) is not to keep such matters systematically hidden by preventing those with the most relevant knowledge from speaking and by pretending that they do not live in the real world, but rather to shine a light on them.

    This helps with b), because a judge who is at risk of being publicly censured by peers, or who is on record as being critical of party X’s policy in a certain area, will have more incentive to be honest and impartial, and be more likely hear about lapses which do occur.

    And it helps with a)*, since it is easier for a member of the public to have confidence on a topic when they have access to the opinions of those most informed on the topic, than when those opinions are systematically suppressed.

    *To the extent that the judiciary is in fact honest and impartial, of course.

    1. To put it he key point more bluntly: What would you think of an organization which said “It is critically important that the public has confidence that our members are honest and impartial. To this end, we prohibit our members from ever publicly suggesting otherwise.”

      Because, that is your U.S. federal judiciary.

  9. Judge Adelman was wrong, he ‘owned’ it, and has apologized.

    He has been a jurist for a long time. This citizen says, “Move on”.

  10. Over more than two centuries, the Supreme Court and the federal judiciary have earned substantial public respect for their fairness and competence. The American people have come to trust federal courts to handle some of our Nation’s most difficult problems when brought to the courts as cases within their jurisdiction.

    I hear the Council is taking their standup act on the road.

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