Below is my column in the Hill newspaper on the recent criticism of the Roberts Court by a federal district judge. The law review article makes a stronger case for critics who view some judges are part of a deep bench movement against Trump. I do not see that pattern but I do view Judge Lynn Adelman as well outside of the navigational beacons for public commentary by federal judges.
Here is the column:
In a controversial law review article, District Court Judge Lynn Adelman denounced what he sees as raw ideological bias on the Supreme Court. Unfortunately, Adelman makes a better case of bias against himself than he does Chief Justice John Roberts. He unloads on Roberts as, essentially, a dishonest partisan hack. He declares the pledge by Roberts to “call the balls and strikes” a “masterpiece of disingenuousness.” Adelman attacks the five conservative justices as that “hard right majority” that has now been “actively participating in undermining American democracy.”
Conversely, the voting bloc of four liberal justices on the Supreme Court appears to be a masterpiece of righteousness to Adelman. He just cannot accept that the conservative majority holds opposing but principled views on issues ranging from immigration to campaign finance to voting rights. Instead, Adelman accuses the conservative majority of diminishing the rights of “ordinary Americans” while responding “only to the wishes of a relatively small number of powerful corporations and individuals.”
His article takes irony to a level of virtual satire. While Adelman chastises the Supreme Court for being “anything but passive,” he has been anything but passive in expressing political and ideological views. Such comments can conflict with the spirit of the canons of judicial ethics. The first canon requires judges to uphold and promote the “impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety.” The third canon requires judges to conduct “personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.” These rules include warnings not to engage in any conduct that is “inconsistent with the independence, integrity, or impartiality of the judiciary.”
Because of these ethical principles, judges usually are highly restrained in their public comments, particularly about political or ideological matters. When I have served on panels with sitting federal judges, they often balk at even discussing the scope of constitutional rights out of concern for these canons. Federal judges are expected to speak through opinions in court decisions rather than in editorials or law review articles.
Adelman has had his differences with the Supreme Court over his views, which often seem in defiance of controlling precedent. He ruled in 2014 that a Wisconsin voter identification law was unconstitutional under the 14th Amendment. The Supreme Court, however, had held in 2008 that an Indiana law with key similarities was constitutional. But that did not deter Adelman, who declared the Supreme Court decision in William Crawford versus Marion County Election Board was not controlling. Furthermore, a unanimous Seventh Circuit disagreed and found a key finding by Adelman was identical to the one that was rejected by the Supreme Court.
Fortunately, appellate courts can correct such errors. Public comments are more difficult to address, since federal jurists hold life tenure. I have been a critic of justices like Ruth Bader Ginsburg and the late Antonin Scalia for repeatedly violating this tradition. Yet justices often note that they are not subject to the same rules as lower court judges and that the ethical canons are merely advisory for those on the highest court.
Adelman has no such claim of exemption but has long acted as if he did. This is not his first departure from judicial tradition. In 2017, he authored a law review article that excoriated Republican legislators and at the time Wisconsin Governor Scott Walker for conservative efforts to “to undo” the standing “commitment to transparency” in the state and other political controversies. As a federal judge based in Wisconsin, the title he uses in these articles, such laws will come before him in any challenges.
Adelman continued his attack in a law review article a year later, declaring that since the era of Chief Justice Earl Warren, “conservatives have waged a sustained attack on the idea that lawsuits can be a constructive means of vindicating constitutional rights.” Even if one agrees with such views, it is not something one expects from a federal judge who must hear cases involving all litigants across the entire political spectrum. Only last year, Adelman wrote a law review article about democracy that denounced the Supreme Court decision on the interpretation of the bribery statute as a further “conservative” effort to roll back federal corruption laws.
As I wrote long ago, Donald Trump seems to have a knack for bringing out the worst in people, a technique that has paid off for him. When he leveled unrelenting and unfair attacks on the media, some journalists proceeded to fulfill that stereotype with what is openly biased hostile reporting. The same appears true with judges such as Adelman, who are undermining the judiciary with screeds against conservatives on the Supreme Court and in Congress. Once untethered from any notion of judicial restraint, Adelman vents about how Republicans remind him of all “those fervent defenders of slavery who pushed the South into the Civil War.”
In the current political distemper, such departures from judicial decorum are celebrated. The liberal group Demand Justice has asked the House to call Adelman to testify. Its chief counsel, Christopher Kang, saw nothing wrong in a judge denouncing what he described as a judiciary favoring corporations and Republicans. He sees no irony in demanding a hearing to allow Adelman to attack conservatives and Republicans to show the “increasingly partisan” and “biased nature” of the court system.
Notably, Demand Action is one of the organizations cited by conservatives as a liberal political action committee and source of “dark money” against conservative nominees, including millions reportedly spent opposing the confirmation of Justice Brett Kavanaugh. Senators Richard Durbin, Richard Blumenthal, Sheldon Whitehouse, Sherrod Brown, and Mazie Hirono have now demanded that the administration turn over evidence of conservative support of judicial nominations through groups like the Federalist Society but not of liberal groups that spend millions against such efforts.
It is the death of irony in our society in this day and age. A federal judge attacks conservatives while denouncing partisanship and is celebrated as an oracle of judicial integrity. We seem to have transcended such quaint notions of hypocrisy or duplicity and become addicted to rage on every level in every form. For his part, Adelman is undeterred and responded to critics by simply saying, “What I said is right. I think it needed to be said.” Perhaps it did, but not by him or any other sitting federal judge.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.