Judges and their First Amendment rights
Judges have difficult jobs, which are made still more difficult by canons that restrict them from holding positions on key issues of all kinds. In celebration of Constitution Day on September 16, U.S. District Judge Amul Thapar addressed this issue, paying particular attention to the rights of judges under the First Amendment.
Entitled “Can Judges Speak? The First Amendment and the Courts,” the lecture addressed issues such as judicial canons, judicial elections, and free speech. Thapar, who has earned a reputation nationwide as thoughtful, careful, and fair-minded, has served as a district judge for Kentucky since his nomination by George W. Bush in 2008.
Thapar began by discussing the controversial topic of judicial elections in light of legislative canons that inform the judges how to conduct themselves in court and in public. According to Thapar, these canons, which regulate judges and their speech, are numerous, complicated, and often ambiguous.
The purpose of the canon is to ensure that judges remain impartial and fair. Thapar mentioned one Kentucky canon states that a judge shall not act as a leader in a political organization. This might seem innocuous, but what if a judge volunteered time and money for a political party? Would he or she be violating the canon? According to the Kentucky Supreme Court, the answer is “yes!”
The problem, as Thapar points out, is twofold. First, these canons very often infringe upon the First Amendment rights of judges. Second, judges have no say in the interpretation of the canons or any way of appealing these canons that directly affect them, even if the canons are unconstitutional or arbitrary. Thapar joked, “If [Kentucky] tells me that whale-hunting is equal to arson, then whale-hunting is equal to arson!”
“It’s a different question if the canons are even constitutional,” Thapar said, claiming that the constitutionality of the canons cannot be taken for granted. Thapar gave the example of the Republican Party of Minnesota v. White case in which the canon that forbade judges from expressing their views on political and legal issues was deemed unconstitutional. The Supreme Court stated that Minnesota’s announce clause “burden[ed] a category of speech that is at the core of First Amendment freedoms—speech about the qualifications of candidates for public office.”
Thapar showed, in contrast, that the practice of one’s First Amendment right has consequences. He used as an example a recent incident in which Justice Ruth Bader Ginsburg spoke out against Donald Trump. “Did she have a First Amendment right to say that?” Thapar asked. “The answer may be yes. But is there a consequence to that [statement]? The answer may be yes too!” Ginsburg may be asked to recuse herself in future cases on the basis that she is biased.
Thapar returned to the controversial topic of judicial elections after discussing the role of canons in the court. In most states, judges are appointed for life. There are obvious problems with that, however. Thapar, for this reason, argued for retention elections in which a judge is removed from office if a majority of votes are cast against his retention. Retention elections are not practical, however, if judges cannot express their views on issues so that the public can cast an informed vote. Because the First Amendment rights of a judge are so essential, Thapar argued for the institution of “best-practices” rather than canons. In this way, the public can decide if the judge follows these best-practices, and the judge can defend himself through free speech.
According to Thapar, judges today play such an important role in this nation that the public has a right to know their positions on key issues. If judges’ First Amendment rights are suppressed, the public will be ill-informed, and the judge’s positions will be compromised.
Philip Spence is a freshman in Sorin College studying architecture. He is a passionate squash player. If you would like to learn how to play, you can contact him at email@example.com.