Federal Judge to Supreme Court: "STFU". Really?????

Federal Judge to Supreme Court: "STFU".  Really?????


It's a story that only a rule of law nerd would catch and pay attention to.  A sitting U.S. federal judge, angry about recent U.S. Supreme Court decisions regarding Obama Care and the requirement for corporations to provide coverage for, shall we say, "controversial" women's contraceptive services, blogs that the Supreme Court is causing more harm than good and needs to, in this judge's words, "just stfu." 


The underlying cases and controversies aren't what caught my attention.  (You can read the story at http://cnn.it/1ojSYz7)  What troubled me is that like it or not, the United States Supreme Court represents the highest judicial decision-making body in the land, and this lower court judge's public and juvenile reaction is the kind of thing that casts doubt on the legitimacy of one of our three branches of government on which we depend for rule of law in this country. 


The fact is that courts often get decisions wrong.  I spent nine years as a trial lawyer in federal court with a 90% win-loss rate, which is darn good.  But I still spent an uncomfortable amount of time trying to explain to my clients why a seemingly rational judge could irrationally gut my client's legally meritorious case.  Judges have opinions, agendas, and emotions; laws are often ambiguous, contradictory, or so poorly written that no one quite knows what they mean.  Sometimes, the evidence in a case just doesn't come out the way you think it should.  It's an iterative, incredibly imperfect process (Japanese internment, anyone?) but it is a process that reflects the U.S. Constitutional, legal, and political structure.  Disrespect it and you throw the legitimacy of the entire government into question. 


In the end, the only thing that really makes a justice system work is if the people who participate in it -- lawmakers, judges, lawyers, law enforcement officials, and litigants -- believe that it is legitimate and worth resorting to.  Otherwise, you have Somalia, or Syria, or Russia -- places where there is little confidence that anyone in the government is willing or able to do the right thing.  The legitimacy of the judicial system is more important than the legitimacy of an individual decision, because it's the system that enables enforceability.    


This federal judge, the stfu guy, knows that very well.  His own canon of judicial ethics mandates that he keep his opinions to himself in order to protect the legitimacy of the higher courts' decisions, which he will now be bound to apply.  For whatever reason, however, he's decided that he is now above the rules.   It's wrong and it's dangerous, and frankly, this particular judge needs to stfu.

Citizenship, Independence, and the Centrality of the Rule of law

Citizenship, Independence, and the Centrality of the Rule of law:  I had the great honor yesterday of attending the naturalization ceremony of a close personal friend who, more than 12 years after leaving her native Russia, was finally able to become an American citizen. If you've never witnessed a naturalization ceremony before, I highly recommend it. Set in the beautiful neo-classical courtroom of our local federal courthouse, it was an emotional experience for all of us.

There were more than 100 soon-to-be citizens in the room, and by the time half of them had stated their country of origin, I had lost count of where they were from – Afghanistan to Ethiopia, Canada, to Thailand, New Zealand, Peru, and all parts in between -- their diversity was amazing.

As a rule of law practitioner, I was struck by how central the rule of law is to the process. The materials on which our new citizens are examined before the process even began required them to learn the values that underpin the Constitution, our system of government accountability, the responsibilities that we, the governed and the governing, all share under the law, and the major decisions of the Supreme Court. The proceeding itself was a demonstration of the rule of law in the way it was conducted -- according to the law, with all of the reverence we accord to a court proceeding and under the watchful eye of a sitting federal judge and a certifying US attorney. Prospective citizens, having been fully vetted according to law, then swore their personal allegiance to the law not once, but five times in the Oath of Citizenship; “justice” as the underpinning to our liberty and freedom, was cited throughout. 

Afterwards, over celebratory glasses of wine and the last, local softshell crabs of the season, we talked about what it all meant, and how easy it is for those of us born into a society that values the rule of law to take it for granted. My friend’s husband remarked that in Russia during the Soviet times, they had a beautiful Constitution that guaranteed individual rights and liberties. But, he reflected, it was rarely followed and never enforced. We discussed the guarantee of religious freedom, and what a rare and important commodity that is. We talked about the opportunity that the law provides, when evenly enforced, for everyone to realize their individuality and potential. The pursuit of happiness, as the Judge had noted during the ceremony, is not some abstract good idea – it is a concept that can only be achieved when it is supported by law.

It was a beautiful reminder of why the rule of law matters so much to each and every one of us. So with that in mind, I want to wish everyone a happy 4th of July. We are so fortunate to live in a land where individual patriots were, and are, willing to sacrifice their lives and their fortunes for equality, justice, and the rule of law. It makes freedom possible and we need to value it more.