The recent rebuke of a New York trial judge by the US Court of Appeals for the Second Circuit had the legal community waiting expectantly for the other wing-tipped shoe to drop. Why the surprising action by the three-judge panel? The reason may have been the judge’s departure from an unwritten code of conduct governing these princes of the judiciary.
When it comes to the behind-the-scenes workings of the federal judiciary few really know what goes on in and among judges’ chambers. Generally lawyers only get to see the end product. The young graduates of elite law schools who serve as judicial clerks for terms of one or two years could reveal what they know but they are all but sworn to secrecy.
In truth the judicial process is already pretty complicated. Too much transparency regarding how judges reach their conclusions and what they discuss with each other would complicate matters considerably. It would also undermine a central myth: that each judge is part of some unified organism called “the court” that speaks with one mind and is motivated only to dispense justice.
That does not mean however that we would not love to know what is going on “back there” — some times more than others. The strange case of Judge Shira Scheindlin is one of those times.
Judge Scheindlin seems to write a disproportionate number of the interesting and controversial decisions emerging from the massive legal complex in lower Manhattan named after the late Senator Daniel Patrick Moynihan. She authored for example the controversial decision upholding New York City’s slight regulation of metzitzah b’peh.
The same judge made headlines earlier this year when she ruled that the New York City police department’s “stop-and-frisk” program amounted to unlawful race-based discrimination in policing. She imposed a temporary stay of the program pending a verdict in a full trial in part because the vast majority of people stopped and searched were black and Latino while the percentage of police stops resulting in convictions was minuscule.
The city appealed the decision to the Second Circuit which hears appeals from federal district courts in New York. Theoretically the circuit court’s decision could itself be appealed to the United States Supreme Court but the latter court hears so few cases that the circuit court usually has the last word.
The Second Circuit’s refusal to reverse the temporary stay of the program was not surprising. What was surprising was what happened on the way to that outcome: The circuit court threw Judge Scheindlin off the case and for a brief time stayed her stay — if only (it seemed) for effect because it eventually reinstituted her stay.
Such removal of a judge is rare indeed especially where as here neither of the parties had complained about the judge’s partiality (admittedly never a great strategy). The appeals court found on its own initiative that the judge comprised her impartiality in two ways. First by appearing to coach one side about a rather routine court procedure. Perhaps more significantly the court also cited that she gave “a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.”
Anyone familiar with the normal back-and-forth of judicial case management would find the first ground for the judge’s disqualification surprising. That’s why the circuit court’s second rationale seems to be the real reason for her disqualification. Although the appeals court cited a vague provision in the written code of judicial conduct to justify the action it took Judge Scheindlin may have violated a more important unwritten rule: Don’t justify “the court’s” decisions in public. There’s no end of trouble if we let that happen — next thing is people will want to know the “real reasons” that influence all “the court’s” rulings.
Yes judges should avoid becoming advocates of their decisions in the “court of public opinion.” This policy is especially compelling when those rulings are temporary and involve cases still pending in real court. But it’s hard not to think that the appellate court was at least as offended by Judge Scheindlin’s style as her substance.
We will we ever know the real reason for the Second Circuit’s unusual action? Probably not — “the court” will see to that. —