skip to main content

November 25, 2013

New York Law Journal

By: Joel Cohen

We have all witnessed judges being excoriated in the tabloids and by strident public figures for grossly unpopular decisions. The judges are most often silent-not responding to their critics. They leave their courthouses at night-time or through backdoor corridors, some hiding their faces like criminals behind newspapers to avoid the paparazzi.

These judges may simply be thick-skinned. Or, more likely, they have decided that-even in the face of one-sided, and often uninformed, public condemnation-they must sit on their hands in silence. No response from them and "no comment" from their staff. These judges refuse comment when asked for interviews by journalists because they believe that, as judges, the unwarranted attacks must go unanswered by them given the canons of judicial propriety. This, even though executive and legislative officials are not only "ethically" free to publicly criticize others, they seem to actually relish doing so as Election Day approaches.

Members of the bar, particularly those who follow these cases, may recognize that the opinions for which these judges are criticized are well within precedent and, indeed, are often the only ruling which could have been made given the bounds of the law. An attorney who follows such cases in the professional journals or even the tabloids might read the relevant decisions (or at least excerpts of them) to fairly appreciate the propriety of the outcome.

She will, thus, be armed with sufficient information to understand why these decisions were legally warranted or justified, if not absolutely necessary. Most attorneys, too, will also understand that the judges' refusals to comment are likely ethically mandated. Chief Justice Earl Warren, after all, in a paradigmatic, gross instance of judge-bashing, felt the need to stand mute even though billboards all across the South were plastered with harsh screeds, demanding his impeachment in the wake of  Brown v. Board of Education.

Related Files & Links


Related Services