Precedent suggests that a federal district court judge from Wisconsin merits severe discipline for his recent, highly politicized paper in the Harvard Law & Policy Review.
In the law review article, Judge Lynn Adelman of the Eastern District of Wisconsin repeatedly and brazenly castigated Chief Justice John Roberts, the Supreme Court as a whole, President Trump, and Republicans in general. For example, he wrote that “the Court’s hard-right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to ensuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.”
The court, he wrote repeatedly, is guilty of “assaulting the voting rights of the poor and minorities” and of having a “Darwinian survival of the fittest mentality.”
In addition to these lazy tropes, Adelman also compared Senate Republicans to “the ‘fireeaters,’ those fervent defenders of slavery who pushed the South into the Civil War” and wrote that “Trump’s temperament is that of an autocrat.” He also argued at great length that courts should mold their decisions with an eye toward results so as not to “contribute to economic inequality and make it harder for poor and working people to improve their economic circumstances.
This thoroughly political essay probably violates at least three provisions — Canon 2, Canon 5, and Canon 3(a)(6) — in the Code of Conduct for U.S. Judges. Canon 5, for example, provides broad prohibitions against “political activity.” As Heritage Foundation fellows GianCarlo Canaparo and Zack Smith explained in a March 12 response to Adelman, “The judiciary’s ability to dispense justice depends entirely on public confidence in its impartiality, and politicking judges cannot appear impartial.”
As explained by noted constitutional law professor Josh Blackman, the precedent for punishing Adelman comes from a 2004-2005 case involving Judge Guido Calabresi of the 2nd Circuit Court of Appeals. In the course of a panel discussion at an event of the self-described progressive American Constitution Society, Calabresi blasted the Supreme Court for its decision in 2000 that had ended Democratic nominee Al Gore’s challenge to Republican George W. Bush’s election as president. He did so in ways that were reasonably interpreted as advocating Bush’s defeat for reelection.
Calabresi was made subject to public rebuke. He avoided potentially more serious sanction only by “apologiz[ing] profusely.”
Notably, Calabresi’s remarks were far more narrowly focused and far less overtly political than Adelman’s essay. They were also extemporaneous, rather than published with malice aforethought in a formal law review article. He thus deserved more leeway for poor spur-of-the-moment word choice than should be extended to Adelman. Indeed, Calabresi began his remarks in 2004 by saying he did not intend them to be taken in a partisan way.
Adelman has no such excuse, and his offenses also were far more extensive than Calabresi’s. He almost certainly merits official discipline of some sort. Possible sanctions (see page 9 here) include such possibilities as “ordering that, on a temporary basis, no further cases be assigned the judge” or “censuring or reprimanding the judge by means of public announcement” or even “requesting that the judge voluntarily retire.”
Judges in our system ought to studiously refrain from politicization of the sort in which Adelman has engaged. Unless he apologizes, it will not be unreasonable to impose severe sanctions upon him.
