In today’s New York Times, Justice O’Connor has co-signed an op-ed urging that the United States dedicate itself now to a “goal of stopping Alzheimer’s by 2020.” She and her co-authors specifically urge Congress to pass a pending piece of legislation by the end of the year:
Congress has before it legislation that would raise the annual federal investment in Alzheimer’s research to $2 billion, and require that the president designate an official whose sole job would be to develop and execute a strategy against Alzheimer’s. If lawmakers could pass this legislation in their coming lame-duck session, they would take a serious first step toward meeting the 2020 goal. [Hyperlink in online version.]
By all accounts, O’Connor was heroic in dealing with the ravages of her late husband’s affliction with Alzheimer’s, and her project to stop Alzheimer’s is obviously a sympathetic one. But sympathy shouldn’t deter inquiry into the question whether O’Connor, who, rightly or wrongly, continues to regard herself as a serving federal judge and to sit on federal appellate cases, may publicly urge Congress to pass a specific piece of legislation that does not “concern the law, the legal system, or the administration of justice.” (I haven’t examined, and have no view on, the merits of the particular bill.)
Have in mind that the defense that O’Connor’s supporters have made of her videos, robo-calls, and other activities in support of a Nevada voter initiative on judicial selection (and of her unseemly politicking on state judicial selection in Iowa and elsewhere) has hinged on the fact that judicial selection is a matter “concerning the law, the legal system, or the administration of justice” within the meaning of Canon 4 of the Code of Conduct for United States Judges. (In my judgment, as I’ve explained in the link above, that fact does not exempt O’Connor’s politicking from Canon 5’s prohibition on political activity.) By contrast, there can be no serious contention that the project of stopping Alzheimer’s is a matter “concerning the law, the legal system, or the administration of justice.” As the Committee on Codes of Conduct has explained:
[T]o qualify as an acceptable law-related activity, the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.
To be clear, I am not contending that federal judges are barred from writing on matters that are not related to the law, the legal system, or the administration of justice. On the contrary, Canon 4 itself states that judges “may speak, write, lecture, and teach on both law-related and nonlegal subjects” (even as it makes clear that law-related activities have much favored status). But writing an op-ed that urges Congress to pass a specific piece of legislation on a nonlegal subject seems very different in kind than, say, writing about video games or literature or baseball. One difference is that, whether or not she specifically authorizes it, O’Connor can reasonably expect that supporters of the anti-Alzheimer’s legislation—including her co-authors—will make use of her reputation and authority in lobbying for the legislation.
So, I ask (and I’m genuinely interested in good answers), is O’Connor’s op-ed consistent with the Code of Conduct (apart from the fact that justices aren’t formally covered by the Code)? And if it is consistent, what principle explains why all other federal judges couldn’t write op-eds urging Congress and state legislatures to pass whatever legislation the judges favor on the full panoply of issues?