The Volokh Conspiracy - Public Trust in the Judicial System:

A story in Saturday's Boston Globe reports:

The chief justice of the state Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, "No red states here."

The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement.

"The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen," Marshall said. "The reference to 'red states' was not part of my written, prepared speech. I regret the comment, and I apologize for it. I did not intend to say anything of a political nature."

The commission said Marshall's statement resolved the complaint filed after the graduation. . . .

I had blogged about this item when her speech was first covered in May, and drew a connection to the substance of her speech, which criticized certain public criticism of the judiciary:

[A] Boston Globe article . . . starts with:
The chief justice of the [Massachusetts] Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.

Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court's 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University's 54th commencement. . . .

[Marshall] said she is not concerned about criticism of individual judges or decisions, but about "attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence."

"I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."
Well, I'm not wild about "vague, loaded terms" like "judicial activism," either; I think complains about "activism" are often quite imprecise, and conceal more than they reveal. Yet "judicial independence" is often a "vague, loaded term," too. Judges should surely be independent of some things -- for instance, the risk that they'll be fired by political figures -- but not from other things, such as public criticism, and decisions being overturned by constitutional amendment. Other questions, such as whether judges should be independent of voter reaction, through recalls or other means of removal through the ballotbox, are more complex, but they can hardly be resolved either through slogans such as "judicial activism" or "judicial independence."

Nor am I particularly moved simply by claims that criticism is "threatening public trust in the judicial system." It seems to me that many judicial decisions -- such as the Massachusetts Supreme Judicial Court's same-sex marriage decision -- are threatening public trust in the judicial system, too. That itself doesn't make the decisions wrong: Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system.

But the same applies to public criticism; that criticism undermines public trust in the judicial system doesn't make it wrong. And while "gratuitious attacks on judges" (which the chief justice particularly criticized) are by definition unsound (in this context, I take it that "gratuitious" means "unfounded"), an argument based on this claim is assuming the conclusion: Surely critics of the courts would say their criticisms are quite well-founded, and not gratuitous. Now I suspect that the chief justice's full argument was more sophisticated and thorough than that, but the Boston Globe's seemingly quite friendly rendition of the argument struck me as unpersuasive.

Finally, one item that particularly stood out . . .:
Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states" -- winning a big laugh.

Yes, I realize that it's a joke; but as with many jokes, I take it has an element of truth to it. Do you suppose that when a chief justice of a nominally nonpartisan state court jokes at a commencement that she's pleased that Massachusetts votes Democratic, that too might help undermine "Americans' trust in the integrity of our judicial system"?

	[Eugene Volokh, December 5, 2005 at 1:01pm] Trackbacks Public Trust in the Judicial System: A story in Saturday's Boston Globe reports: The chief justice of the state Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, "No red states here." The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement. "The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen," Marshall said. "The reference to 'red states' was not part of my written, prepared speech. I regret the comment, and I apologize for it. I did not intend to say anything of a political nature." The commission said Marshall's statement resolved the complaint filed after the graduation. . . . I had blogged about this item when her speech was first covered in May, and drew a connection to the substance of her speech, which criticized certain public criticism of the judiciary: [A] Boston Globe article . . . starts with: The chief justice of the [Massachusetts] Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy. Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court's 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University's 54th commencement. . . . [Marshall] said she is not concerned about criticism of individual judges or decisions, but about "attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence." "I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished." Well, I'm not wild about "vague, loaded terms" like "judicial activism," either; I think complains about "activism" are often quite imprecise, and conceal more than they reveal. Yet "judicial independence" is often a "vague, loaded term," too. Judges should surely be independent of some things -- for instance, the risk that they'll be fired by political figures -- but not from other things, such as public criticism, and decisions being overturned by constitutional amendment. Other questions, such as whether judges should be independent of voter reaction, through recalls or other means of removal through the ballotbox, are more complex, but they can hardly be resolved either through slogans such as "judicial activism" or "judicial independence." Nor am I particularly moved simply by claims that criticism is "threatening public trust in the judicial system." It seems to me that many judicial decisions -- such as the Massachusetts Supreme Judicial Court's same-sex marriage decision -- are threatening public trust in the judicial system, too. That itself doesn't make the decisions wrong: Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system. But the same applies to public criticism; that criticism undermines public trust in the judicial system doesn't make it wrong. And while "gratuitious attacks on judges" (which the chief justice particularly criticized) are by definition unsound (in this context, I take it that "gratuitious" means "unfounded"), an argument based on this claim is assuming the conclusion: Surely critics of the courts would say their criticisms are quite well-founded, and not gratuitous. Now I suspect that the chief justice's full argument was more sophisticated and thorough than that, but the Boston Globe's seemingly quite friendly rendition of the argument struck me as unpersuasive. Finally, one item that particularly stood out . . .: Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states" -- winning a big laugh. Yes, I realize that it's a joke; but as with many jokes, I take it has an element of truth to it. Do you suppose that when a chief justice of a nominally nonpartisan state court jokes at a commencement that she's pleased that Massachusetts votes Democratic, that too might help undermine "Americans' trust in the integrity of our judicial system"?