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Really?

In a talk about judicial independence, Judge D. Brooks Smith of the Third Circuit told the Supreme Court Historical Society last week that he’s concerned about the rise in “combative” language in judicial opinions. To his mind, increasing levels of dripping vitriol might harm the public’s opinion of the federal judiciary.

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Oh?

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“I’m a little disturbed by some language I see from time to time in the present day that is a bit more combative than what I’ve seen in the past… It’s something we judges need to keep in mind. It makes for great ink if you’re in the news media to draw on differences between judges and what seem to be sharp exchanges between judges. If for no other reason than the fact that it does make for a good angle is probably a reason to avoid it,” Smith said last week.

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The rest of the us came to this obvious conclusion a long time ago. The Ninth Circuit’s Judge Lawrence VanDyke, an ABA non-qualified judge plucked from the Federalist Society shortlist, has published dissents labeling his peers as criminals with a “rap sheet” and “possessed.” Before Judge James Ho started grandstanding about the dangers of Yale Law School students having basic free speech rights,  Ho was already a model of incivility. Alas, Judge Ho understands that saturating an opinion with disdainful rhetoric is a more effective resume builder than actually reading the cases he cites as precedent.

This isn’t the first time the Third Circuit has sounded a note of caution about collegiality. Judge Stephanos Bibas told the Harvard Law School Federalist Society that judges need to spend less time writing “show off” opinions designed to appeal to “the kind of cheerleading you get from Twitter.” And if there’s a model of conservative decorum out there, it’s obviously the organization that elected a president who flashed a gun in class.

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But all this hand-wringing from conservatives over intemperate opinions is a tad rich from the same people who’ve elevated Antonin Scalia to sit at the right hand of Ronald Reagan in their spiritual firmament. No matter how many times he went to the opera with Ruth Bader Ginsburg, he left a permanent record of withering contempt for colleagues. When a generation of conservative legal warriors grew up genuflecting every time he accused the majority of “jiggery-pokery” or writing “an opinion lacking even a thin veneer of law,” how is anyone surprised that they prioritize contempt over substance?

Judge Smith took one detour during his talk:

Also during the event, which focused on judicial independence, Smith criticized the Judicial Accountability Act—which sought to extend anti-discrimination legal protections to judiciary workers—and said he hopes it is not reintroduced in Congress.

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Yeah… how dare someone suggest that the judiciary adhere to the basic laws of the Republic? Those are meant for the commoners!

Maybe impertinent language isn’t the only thing eroding public faith in the judiciary.

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‘Disturbed by Some Language:’ Judge Concerned by Rise in Combative Opinions [National Law Journal]

Earlier: Judges Must Stop Writing For ‘Cheerleading You Get From Twitter,’ Judge Tells Crowd Of Twitter Cheerleaders
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Harvard Law School FedSoc President Brings Gun To Class.
Judge Ho Apparently Didn’t Bother To Read The Cases He Cited In Domestic Abuser Gun Opinion

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Antonin Scalia, Courts, D. Brooks Smith, James Ho, Lawrence VanDyke, Legal Ethics