The 2018 election season saw several efforts to remove a judge from office based on a single controversial ruling. In Alaska, Superior Court Judge Michael Corey lost his bid for retention after he approved a no-jail time plea bargain for a defendant charged with assaulting a woman in a sexual manner. In California, Superior Court Judge Aaron Persky was recalled by voters after he delivered a lenient sentence to a defendant in a highly publicized rape case. Californians were also urged not to retain state Supreme Court Justice Carol Corrigan, based on her dissent in a same-sex marriage case ten years earlier. (Details of all three campaigns can be found here.)
These efforts differed from previous campaigns against sitting judges in their sophisticated use of social media. The anti-Persky campaign established a strong Facebook and Twitter presence that coincided with the burgeoning #MeToo movement. The anti-Corey campaign developed a similar presence on Facebook and Instagram with the hashtag #nooncorey. And the anti-Corrigan campaign charged on Facebook that she was a “Supreme Court Justice Against Equality” and recruited celebrities to urge for her ouster on Twitter. In each instance, the judicial decision that sparked the campaign was reduced to a simple tagline designed to provoke voter outrage.
As the hashtags, likes, and retweets piled up, the targeted judges found themselves unable to fully and publicly defend their decisions. Professional ethics rules have long prevented judges from speaking about their rulings and opinions, even when those decisions are mischaracterized, corrupted, or decontextualized during the political process. Targeted judges could only hope that advocates outside the judiciary would work to educate voters about the limits on judicial authority and the legal intricacies of each decision. Such nuanced messages, however, are no match for the blunt instrument of social media.
In light of the 2018 experience, the California courts are adopting a new approach to judicial speech. Beginning July 1, 2020, state judges will be able to comment directly on pending cases—their own or those of a judicial colleague—in connection with a judicial election or recall campaign. Specifically, the state supreme court has revised Canon 3B(9) of the California Code of Judicial Ethics to read, in pertinent part:
“In connection with a judicial election or recall campaign, this canon does not prohibit any judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.”
The amended rule allows judges who are under electoral attack to explain and contextualize their decisions to the voters directly. This is especially important for decisions rendered orally from the bench, which—like the rulings that ultimately felled Judges Corey and Persky—were not supplemented with a written account of the judge’s thought process. If a controversial decision was mandated or constrained by existing law, or by formal rules of evidence or procedure, the judge is now free to explain those circumstances to the public. A nuanced legal explanation will still struggle to compete for voter attention in comparison to a simple hashtag, but at least a judge will have some opportunity to advance his or her position directly.
At the same time, by inviting judicial comment on pending cases, the new rule places the overall integrity of the judiciary at greater risk. Traditional rules of judicial conduct prohibit judges from even approaching behavior that might be considered inappropriate for a neutral jurist. Judges, for example, are directed to avoid the appearance of impropriety, to disqualify themselves if there is anything above a de minimis personal interest in the outcome of a case, and to conduct extra-judicial activities so as to “minimize the risk of conflict with obligations of judicial office.” And, of course, judges are traditionally barred from discussing a pending case, lest they compromise the fairness of the proceeding. By consistently erring on the side of impartiality, judicial conduct rules avoid close calls and send a message that judicial integrity is of the utmost importance. The new rule blurs the line between appropriate and inappropriate judicial speech, and may have long-term erosive effects on public faith in the judiciary.
Moreover, the new rule may place unwanted pressure on individual judges to comment on controversial decisions, including decisions by their colleagues. When a judge is targeted for recall or non-retention, fellow jurists may be pressed by the media or advocacy groups to give their take. Under the old rule, judges had no choice but to decline comment. With that barrier gone, and in an age when silence on an issue is increasingly (and often unfairly) equated with holding a particular view, judges may feel compelled to make public statements to protect their own reputations, even when they are personally and institutionally ill-equipped to do so.
California’s new rule can be effective, if it is employed with precision and prudence. If members of a court join together to explain and contextualize the decisions of their targeted colleagues, even—and perhaps especially—the decisions with which they personally disagree, they can educate the public about the procedural intricacies and protections of the legal system with a single, powerful voice. But if individual judges use the new rule haphazardly, and only in support of the outcomes that they personally like, the amendment may exacerbate the problem of public ignorance while undermining the court system’s legitimacy.