Judges' opinions off the bench

Can Clarence Thomas attack liberals and still be a fair justice?

from the October 12, 2007 edition

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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."

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