Bench Memos

Re: Justice Stevens’s Unethical Testimony

A reader asks, reasonably, that I explain my assessment that Justice Stevens has acted unethically in testifying before Congress in favor of a constitutional amendment on campaign-finance restrictions. So here’s a short version:

1. When Stevens decided to retire from active service, he had two options under 28 U.S.C. § 371: He could fully retire (i.e., “retire from the office”) under subpart (a), or he could “retain the office but retire from regular active service” under subpart (b). As his retirement letter reflects, Stevens clearly chose the second option: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.” Further, the Supreme Court’s public information office advised me yesterday that he remains retired under subpart (b). Thus, he remains an Article III judge.

2. The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges and has authorized its designated Committee on Codes of Conduct to issue advisory opinions on the meaning of the Code of Conduct. (The Code of Conduct doesn’t formally apply to Supreme Court justices (including those retired pursuant to § 371(b)), but it’s generally regarded as providing a benchmark for judging their conduct.)

In its Advisory Opinion No. 50 (available, along with other opinions, here), the Committee on Codes of Conduct concludes that, notwithstanding the arguably expansive text of Canon 4A(2),

a judge may appear at a public hearing before or consult with an executive or legislative body or official relative to matters not concerning judicial administration only “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.”  

In its Advisory Opinion No. 93, the Committee on Codes of Conduct, in summarizing Advisory Opinion No. 50, states:

We have … advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. [Emphasis added.]

3. I don’t see how Stevens’s role in deciding cases involving campaign finance should be thought to give him “special expertise in that area” any more, say, that Justice Scalia’s role in deciding cases involving abortion gives him special expertise in that area. Anyone who would be appalled if Scalia were to testify before Congress on, say, a proposed Human Life Amendment ought equally to be appalled by Stevens’s testimony. There is nothing about either topic that would “reasonably … be considered to merit the attention and comment of a judge as a judge.”

Update: Eugene Volokh disagrees with my conclusion. He thinks that Stevens does have the requisite “special expertise” in campaign finance, largely because Stevens “is the one living judge who has participated in the greatest number of campaign finance cases.” I don’t see how his comparison of Stevens to other judges is relevant. As I read the commentary, the question instead is whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges. Unlike, say, a judge’s unique insights on how juries operate, I don’t see how a judge has anything special to add on campaign finance.​

Update #2: Eugene Volokh responds (same link) to my first update. I think that what divides us is how we read the Advisory Opinions. As I read them, the “special expertise” they require is something very like the special expertise that judges have in judicial administration. Volokh objects that the Advisory Opinions “set forth a ‘special expertise’ standard, not an ‘unparalleled expertise’ standard.” But here is how Advisory Opinion No. 93 puts it: “permissible law-related activities are ‘limited to the kinds of matters a judge, by virtue of [the judge’s] judicial experience, is uniquely qualified to address.’” (Emphasis added.) I think that my focus on “whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges” is faithful to that standard and that Volokh’s inquiry (comparing Stevens to other judges) is not.


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