The Volokh Conspiracy

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Do Judges "Have an Important Role to Play in Our Society" Beyond Judging?

A disagreement.


I have written before here at the blog about why I disagree with judges boycotting particular law schools in an effort to influence law school culture. Over at David Lat's substack, Judge Lee Rudofsky, who is considering whether to join the Columbia clerk boycott, offers a perspective on the role of judge that is relevant to that discussion and that I think is worth addressing:

Regardless of whether I join or not, I generally (and mournfully) agree that Columbia University has become an incubator of antisemitism and anti-Americanism. And I do think that, at some point, judges must step up to the plate as leaders of the bar to help stop the spread of the virulent Jew hatred that is being normalized on college campuses and elsewhere across the country.

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.

I respectfully disagree.  As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers. They shouldn't be stepping up to the plate, and they shouldn't be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.

In the specific case of federal judges, people who are federal judges were given power because they fit a particular profile. They had the right age, the right education, and the right set of views that a President and a Senate were looking for to fill judicial positions. Being nominated and confirmed gives them a judicial power to decide cases. That is an extraordinarily important job, and we should all thank judges for their public service.

With that said, nothing in that process qualifies a judge for some broader role in society.  Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it. But I don't think they should take on that role as judges.

The problem, it seems to me, is that the "special responsibilities" Judge Rudofsky suggests judges have can be hard to distinguish from politics. I don't mean politics in the Republican versus Democrat sense (although it's presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees). I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don't happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.

Of course, if judges want to weigh in on law reform questions, or write law review articles or other legal commentary, that's of course fine. They have the same right to do that as anyone else. But it seems to me the boycott framework crosses an important line: It uses judges' official government power to employ law clerks in an effort to influence the world of culture and politics. And I don't think that line should be crossed.