How Have Judges Responded To The Press?

Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

|The Volokh Conspiracy |

I recently criticized a Ninth Circuit judge who corrected a press report in a judicial decision. In effect, her opinion was a letter to the editor. She would have been better suited to simply write a letter to the newspaper, in her private capacity, seeking a correction. Instead, she chose to do so in the federal reporter.

I was reminded of the Case of the Speluncean Explorers. One of the judges, Justice Keen, includes in his opinion a personal plea to the Chief Executive seeking clemency for the explorers. Another judge responds, "I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers' expense."

There is some precedent for federal judges to defend their decisions in the press. In 1819, Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. And in 1968, Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

McCulloch v. Maryland

McCulloch v. Maryland (1819) proved to be very unpopular. Critics charged that Marshall had read the Necessary and Proper Clause as to give Congress boundless authority. In response, Chief Justice Marshall published two essays in the Philadelphia Union and nine essays in the Alexandria Gazette.  The latter essays responded to a particularly vituperative criticism authored by Virginia Supreme Court Justice Spencer Roane, who used the pseudonym "Hampden." Specifically, Marshall rejected the notion that McCulloch gave Congress an unlimited power. Here is an excerpt, which Randy and I include in our casebook:

I say, without fear of contradiction, that the general principles maintained by the supreme court are, that the constitution may be construed as if the clause which has been so much discussed, had been entirely omitted. That the powers of congress are expressed in terms which, without its aid, enable and require the legislature to execute them, and of course, to take means for their execution. That the choice of these means devolve on the legislature, whose right, and whose duty it is, to adopt those which are most advantageous to the people, provided they be within the limits of the constitution. Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of a given power.

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, "should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land."

Modern defenders of federal power have ignored some of the important, limiting langauge from McCulloch. For example, the quoted sentence emphasized above. Randy and I think that Marshall's defense of McCulloch is useful to understand the scope of that decision.

Jones v. Alfred H. Mayer Company

In the second case, a Justice defended his decision in a signed letter to the editor.

On June 17, 1968, the Supreme Court decided Jones v. Alfred H. Mayer Company. This case held that 42 U.S.C. 1982 prohibits racial discrimination in the sale of real estate. (Then-Judge Harry Blackmun wrote the panel decision for the Eighth Circuit.) The Court split 7-2. Justice Stewart wrote the majority opinion. Justice Harlan dissented, joined by Justice White. Harlan was especially critical of the majority in light of the recently-enacted Fair Housing Act of 1968. Harlan thought the case should have been DIG'd:

Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute embodying "fair housing" provisions  which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted.

The case was argued on April 1, and the FHA was signed into law on April 11Alfred H. Mayer was decided on June 17.

On June 20, the Wall Street Journal published an editorial titled, The Alternate Legislature. The editorial charged that the Court engaged in "judicial legislation," and for going far beyond the recently-enacted Fair Housing Act. Here is an excerpt from "The Alternate Legislature," Wall Street Journal, June 20, 1968:

The question to ask about the Supreme Court's sweeping proscription of housing discrimination is not whether the effects of the decision are just and wise, but whether the Court sees any limit to its role as an alternate legislature.

For the Court decision goes far beyond the fair-housing law Congress recently passed. Congress outlawed racial discrimination in housing, but provided some exceptions such as a homeowner selling has house without use of a real estate broker. The Court in effect wiped out such exceptions and also made fair housing effective immediately rather than in the stages Congress had provided. ….

The activist majority on the Court needs to start thinking about the limits of its legislative role. Before the Justices set out to write law on their own, they at least ought to hesitate long enough to give the real legislature first chance.

I found a copy of the editorial in the June 24, 1968 edition of the Congressional Record (p. 13 of this PDF). Senator Robert Byrd of West Virginia entered it into the record; he said "the activist majority of the court needs to start thinking about the limits of its legislative role."

On July 3, 1968, Potter Stewart–who authored the majority opinion in Jones–wrote a letter to the editor. Here is the response. "Letters to the Editor: Justice Stewart Dissents," Wall Street Journal, July 3, 1968.

I have read with interest the editorial of June 20, "The Alternate Legislature." In the case to which you refer, a man was refused the purchase of a house solely because he was a Negro. He eventually brought his case to the Supreme Court, relying upon a law, 42 U.S.C. 1982, written and passed by Congress that says:

"All citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

The Supreme Court held (1) that this law means what it says, and (2) that Congress had constitutional power to pass it. You say this made the Court a "legislature."

What would the Court have been if it had held (1) that the law does not mean what it says, or (2) that Congress did not have the power to pass it?

I add only that Congress, having enacted 42 U.S.C. 1982, remains free to amend it at any time.

Potter Stewart

Associate Justices, U.S. Supreme Court

Stewart's response is very weak. He insists the majority's reading of the statute is the only possible meaning of the statute. He repeats the standard line that he was merely interpreting Section 1982, and Congress can change it if it doesn't like the decision. (His certainty has a Gorsuch vibe to it, doesn't it?).

Judges should not try to defend their work; let the decision speak for itself.

I am grateful to Professor Steve Wasby who flagged this exchange. He wrote about Stewart's letter in Stephen L. Wasby, Anthony D'Amato, and Rosemary Metrailer, Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies (Southern Illinois University Press, 1977).

NEXT: Today in Supreme Court History: July 28, 1880

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  1. I still don’t get why you’re so critical of Judge Callahan. Sure, she probably didn’t need to make the correction in her opinion, but I also see nothing wrong with doing so.

    Her footnote is also very different from the Marshall and Stewart examples you give here, where the justices offer interpretive explanations of the reasoning in their decisions. Callahan was pointing out a simple factual inaccuracy, one that, notwithstanding your completely bizarre defense of the reporter, should have been checked and corrected before the piece went to print.

  2. In the recent German Constitutional Court case about the PSPP (Weiss v. Bundesbank et al., from 5 May 2020), the result proved sufficiently controversial that the chairman of the relevant senate, Andreas Voßkuhle, and the author of the judgment, Peter Huber, gave a series of newspaper interviews to defend it. Whether that made things better or worse is another matter…

    https://verfassungsblog.de/verfassungsrichter-in-der-defensive/

  3. “Judges should not try to defend their work. . . .”

    I don’t get it – why not?

    I’d think as long as they kept it to their decision (i.e. don’t discuss/agree/disagree/disaparage other Justices), then it would be a great learning opportunity for everyone interested in the Court.

    It would also facilitate our understanding of a decision (which might put mavens like you out of work).

    1. It’s like Scalia’s argument in favour of textualism: letting judges explain their work afterwards means that they have less reason to be careful about how they write their judgments. Forcing them to speak through their judgments only gives them an incentive to think carefully about its drafting, to make sure that it is clear and legible.

      1. That makes sense, but could we be talking about two different target audiences? The opinion is aimed, I suppose, at the litigants, other courts, maybe the legal profession as a whole. It is often lengthy and contains a fair amount of legal terminology.

        Letting the judge produce a “popular” version of his argument doesn’t seem that bad.

        After all, the media are going to produce all sorts of reports, some accurate, some not. Why does it hurt to get an explanation from the horse’s whatever?

        1. True. At the Supreme Court, arguably that is what the headnote is for. In other countries, such as the UK, the (supreme) court publishes a press release to go with each judgment.

        2. P.S. Speaking to the press is not easy, and not necessarily something that judges are good at. By way of compromise, senior Dutch courts have “press judges”, who are judges from each court who are specifically trained to speak to the press, and who answer questions that are too technical for the (non-lawyer) spokesperson of the court. But that’s probably easier in the Netherlands where all judgments issue from the court, without concurrences or dissents.

          1. “all judgments issue from the court, without concurrences or dissents.”

            Something well worth adopting here.

            Finally a Dutch thing I like.

            1. It has advantages and disadvantages. You see the downside particularly in the European Court of Justice, which has the same system. Because they try to achieve consensus, sometimes key passages can be quite vague, allowing for multiple interpretations. Other times, ECJ judgments read as if they started from a draft and then deleted things that too many judges hated, leaving gaps in the argument. (Dutch judgments are shorter anyway, so these issues are less apparent.)

  4. “Stewart’s response is very weak. He insists the majority’s reading of the statute is the only possible meaning of the statute.”

    Prof. Blackman criticizing an author for unqualified assertion of ‘the one true way?’

    1. Not only that, but his reading strikes me an incorrect, result-driven one. The statute was enacted to give “All citizens of the United States . . . the same right . . . as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” White citizens never had the right to compel unwilling sellers or lessors of property to enter a transaction. Congress was seeking to overturn the Black Codes, and otherwise to abolish “badges of slavery” that some Southern states had enacted immediately after the Civil War, not to enact an open housing law or otherwise address private conduct. (It took the Civil Rights Acts of 1875 (invalidated by the Supreme Court in 1883), 1964, and 1968 to do that.)

  5. Judges and justices give their unsolicited views about a lot of stuff in opinions: history, sociology, pop-psychology, science, philosophy, scripture, religion, politics, even literature and films. It presents endless fodder for critics, as to both the propriety and the substance. There is a lot of non-sense in federal reporters (state ones too). In this case the “non-sense” happens to be 1) factually correct 2) unrelated to the judge’s views about anything other than a belief in making sure the public has an accurate understanding of the procedural history of prior cases.

    Is this really more inappropriate than the self-indulgent concurrences that read more like blog posts that judges so often issue? Of course not.

    I suspect the reason Josh doesn’t criticize those is because his dream job is to write them.

  6. Marshall’s editorial, which can be read as limiting federal power, is important to understanding the scope of Court’s decision in McCulloch. Stewart’s editorial, which defended the Court’s decision expanding federal power, is very weak.

    What a shocker.

  7. Randy and I think that Marshall’s defense of McCulloch is useful to understand the scope of that decision.

    I don’t agree with you guys very often, but I think you are right about this.

    A national bank really isn’t anywhere near the outer limit of the commerce or necessary and proper powers. There’s nothing in McCulloch that necessarily gets you to Wickard and Raich.

  8. Re: Gorsuch: to the extent there are now complaints that he is arrogant, smug, etc., it should be noted that there were similar complaints about him made during the confirmation process. Further, when he first joined the bench, and immediately started dominating oral argument (with snarky asides and cutting off other justices), and immediately started writing strident dissents and dissentals, there were published leaks that he was getting on other justices‘ nerves and that he thought he was smarter than the other justices did.

    So if his style or personality irks FedSoc members, Whelan or Sevarino, GOP Senators, or White House officials, well, they had fair warning. (There were several potential nominees who would have been as originalist, but more conservative and less libertarian, than Gorsuch, and certainly more humble/personable, if that’s what the GOP wanted. Did they think that an Episcopalian in 2017 was likely to be a social conservative?)

    (Please excuse any typos. Not going to proofread a comment, and Reason dislikes editing, it appears.)

    1. It’s also what you get when you get the textualism true believer: they’re going to dive into the dictionary and the mechanics of grammar and ignore everything else. This exercise clearly isn’t as predictable as conservatives believed it was. Or perhaps more accurately, predictably conservative.

      1. There are obviously hacks out there. And you can make it your mission to appoint hacks.

        The problem is, many, many Americans don’t really want to think of themselves as favoring hacks. They like to tell themselves that they are more principled than that. This is especially true of conservatives with respect to judges, because they have lectured liberals for so long as to liberals’ supposed hackishness and lack of respect for the law. So they really don’t want to have to admit that what they want are hacks.

        And if you disclaim wanting hacks, well, judges who are actually trying to get the law right rather than help their side will sometimes cast votes you don’t like. Because in trying to the law right, they may come to decide that the other political team is right in a particular case.

  9. > Judges should not try to defend their work;

    Says the guy who spends his time criticizing their work. Isn’t that convenient?

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