Judges' opinions off the bench

What can judges properly say outside court? Supreme Court Justice Clarence Thomas's harsh assessments of liberals throughout his recent autobiography have brought this question back into the news.

Of course, it has not been absent long. In March 2006, lawyers asked Justice Antonin Scalia to disqualify himself from a case involving Guantánamo detainees after he ridiculed the idea that captured enemy combatants deserved jury trials during a speech at the University of Freiburg in Switzerland. Justice Scalia refused, though in 2003 he did recuse himself from hearing a challenge to the recital of the Pledge of Allegiance in public schools after giving a speech in which he criticized the lower-court decision in that case.

Keeping quiet might seem the safer course, but judicial reticence can prompt complaints, too. During the confirmation hearings for John Roberts and Samuel Alito, many observers – myself included – expressed frustration at the nominees' unwillingness to say more about their opinions on constitutional law.

So are judges saying too much or too little? The answer, I think, is a bit of both. Consider first the confirmation hearings. The nominees generally stood on the principle that it would be improper for them to express opinions on matters that might come before the Court.

This is probably true with respect to particular cases that have been filed or whose filing can be foreseen. Canon 3A(6) of the Code of Conduct for United States Judges admonishes them not to comment publicly on the merits of a pending or impending case, though the canon exempts scholarly presentations from that ban and the code does not apply to Supreme Court justices. But it is not true with respect to particular legal issues. Nominees should not promise to rule a certain way, nor should they feel bound to adhere to statements made during confirmation hearings. But there is no good reason nominees cannot describe their current, provisional, views of particular constitutional issues.

The supposition that such comments are improper may stem from a failure to distinguish between cases and issues. Prejudging cases before reading the briefs and hearing arguments is wrong. Every litigant is entitled to a fair opportunity to convince a judge, and without hearing argument the judge cannot be sure which issues a case presents or on what facts it might turn. Prejudging issues is not wrong; it is the result of legal education and experience. A judicial nominee with no opinions on legal issues is not impartial but rather unqualified.

Moreover, with respect to cases and issues alike, it matters far more whether a judge has opinions than whether he or she reveals them. A judge who is inappropriately biased against a particular litigant does not cure the problem by hiding the bias, and one who appropriately holds opinions on legal issues does not cause a problem by discussing them.

The distinction between cases and issues suggests that nominees should be more forthcoming. It helps explain Scalia's behavior as well. In the Guantánamo case, his remarks were general enough to count as a discussion of the issue. With the Pledge of Allegiance case, he specifically mentioned the lower court decision, making recusal appropriate.

The case of Justice Thomas is a little harder. The remarks that have attracted the most attention – his characterizations of liberal groups as "water moccasins" and "zealots draped in flowing sanctimony," for example – do not relate either to legal issues or to specific cases. But they do suggest the possibility of favorable bias toward conservative litigants.

Again, however, holding strong political views is not the same as acting on them, much less allowing them to improperly influence one's work as a judge. The vision of an apolitical judiciary may be appealing, but it is not realistic. Judges are highly educated and frequently politically active; it would be astonishing if they lacked strong views on political issues.

Perhaps they should think twice before expressing those opinions. The appearance of impropriety is to be avoided like impropriety itself, says Canon 2 of the Code of Conduct. Simply disclosing political views should not make us think a judge is any less likely to act impartially, but some people will draw that conclusion. If the political expression amounts to advocacy, the conclusion may be justified. (This, presumably, is why Justice John Harlan II reportedly said that Americans should never see a judge leaving a voting booth.) And even if not, extreme political views may cause readers to question a judge's temperament.

On the other hand, there is something to be said for knowing judges' political views. With that knowledge, we are much better able to tell whether those views drive their decisions. We should not be surprised that judges have politics outside the courtroom. But we should demand that they have principles inside it.

Kermit Roosevelt is a professor of law at the University of Pennsylvania and the author of "The Myth of Judicial Activism."