No Muzzle Needed for Judge Kopf

Richard Kopf, a U.S. District Court judge in Nebraska, writes a blog. The other day, he vented about the Supreme Court's recent decision in Hobby Lobby, the decision that extended the fiction of corporate personhood to the point of now offering the law's protection to "corporate" beliefs. The owners of Hobby Lobby can have their corporation opt out of providing contraceptives under the Affordable Care Act.

Writes Kopf about the court's tendency to decide, on a 5-4 basis, significant issues dividing the country: "Next term is the time for the Supreme Court to go quiescent – this term and several past terms have proven that the court is now causing more harm (division) to our democracy than good by deciding hot-button cases that the court has the power to avoid. As the kids say, it is time for the court to stfu."

That's right, a District Court judge broke ranks with his superiors, and he dropped a coded f-bomb to signal his disgust.

Kopf may be regretting his candor. He's posted a private note he received from a lawyer he respects on his blog page. The lawyer urges him to stand down. Kopf's inflammatory commentary is bad for the bar, and for the courts: it promotes disrespect for the judiciary, the lawyer says. Indeed, it might even be a violation of the Code of Judicial Conduct, which requires judges not to engage in conduct that might be prejudicial to the administration of justice by, for example, lowering the public's confidence in the judiciary. Kopf announces he's going to sit on this topic for a while, and decide what his duty requires.

The soul-searching is commendable. Kopf is a visible player in the courts: he doesn't just opine on what others do, he issues opinions. He is a player in justice's game. Unlike most legal bloggers, he walks the walk and talks the talk.

However, suggesting that because he is a judge he cannot speak his mind is troubling. Yes, he is an officer of the court, and the integrity of his corps matter – lawyers have been disciplined for speaking too bluntly about judges in public fora. But should the judge keep silent and pretend all is well in the law's crystal palace?

Not too many years ago, a potential judgeship was waved before my eyes. Was I interested? Ultimately, I concluded I was not. The primary reason is that I enjoy being outspoken, and felt a judgeship would require a muzzle I did not want to wear. Frankly, it never occurred to me that one could be a judge and a provocateur. Yes, there are the Richard Posner's of the world – well, actually, there's only one Posner – writing provocative books while sitting as a judge on the U.S. Court of Appeals for the Seventh Circuit. But Posner's books stand to most blogging as does gold to mold. Posner writes from a polite insider's perch, justifying the ways of power to lesser mortals; most blogging is akin to Edvard Munch's "The Scream" – writers tell others the sky is bleeding and paint in vivid tones.

Kopf enjoys a lifetime appointment. His blog writing is not an impeachable offense. He will not be removed from office for speaking the truth. Nor should he be.

It might discomfit the robe-wearing class, and those who take great comfort in the illusion that all is well in this the best of all possible worlds, to silence Kopf. If the judge would just apply legal doctrine to the facts presented before him, if he'd just process the cases brought to him, if he'd just keep the assembly line of justice well-oiled and greased, we could all just go about our merry way. All Kopf has to do is keep playing wizard of Oz and he'll be a kept man for life. That's the safe course.

That he's elected to rip back the curtain and show a little something to the rest of the world is no cause for regret. There is a broad crisis of legitimacy in this nation. Left and right talk past one another. We debate meaningless issues while our infrastructure crumbles and millions of Americans are without work, without health care and without hope. It's no mystery that many Americans think the courts don't work. That Kopf dared approach the crisis, even in oblique and profane terms, is no cause for censure.

Odds are the blue-noses and tongue-cluckers of the bar will persuade Kopf he can't speak his mind and wear justice's robes. Candor has its limits; too much truth is a dangerous thing. If so, I hope Kopf will keep the courage of his convictions and walk away from the bench. We can always find another spineless time-server to pretend that all is well amid the rubble. What's lacking are truth-speakers who can walk and talk the truth.

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