Robert Cover and Leon Kendall

My first reaction upon reading this was, well, that seems obviously right. A trial judge in the Virgin Islands found prosecutors guilty of misconduct. When the Virgin Islands Supreme Court reversed him, he recused himself, because he recognized that he was bound by higher authority but also felt that his conscience wouldn’t allow him to participate in what he saw as a grave injustice. Affronted, the Virgin Islands Supreme Court held him in criminal contempt. Now the Third Circuit has reversed, ruling that the trial judge’s First Amendment rights had been violated.

But the more I think about it, the less I am convinced that this is right. Leave aside the oddity of having the Third Circuit review the decisions of the Virgin Islands Supreme Court (a result that has since been eliminated by statute). I think it might be a mistake to think of judges as having First Amendment rights in their judicial rulings. They are government agents, not private actors– they speak from the bench with authority because they have the power to rule over others, not because they are thought to be wise or because they have the right to mouth off. I think this is the point Robert Cover was making when he said, “The judges deal pain and death.” (Violence and the Word, 95 Yale L.J. 1601, 1609.)

Between Ysursa v. Pocatello‘s holding that inferior government units don’t have free speech interests against their superiors, and Garcetti v. Ceballos‘s holding that government employees don’t have free speech rights in their on-the-job speech, the First Amendment ruling here seems counterintuitive at best. I can imagine a defense of lower-court defiance derived from the separation of powers or the constitutional oath, but that’s not the path the Third Circuit followed and it’s not clear to me how those principles apply in the Virgin Islands. In any case, the Third Circuit’s opinion is such a mess of confusion and overlong footnotes that it’s conveniently hard to follow.

Constitutional doctrine aside, the Third Circuit’s ruling does not strike me as a blow for justice either. In this particular case the trial judge may be ruling on the side of the powerless, but First Amendment rights are content-neutral, so the same idea would presumably apply to judges who refused to institute clemency orders or desegregation decrees.

But maybe we should at least be impressed by the trial judge’s bravery in standing up against prosecutorial abuse. I hate to spend all of my time on this blog as a contrarian, but I am skeptical of that too. Is this really the only case in which the trial judge has been forced to do something unjust by his superiors? I highly doubt it. By making such a big fuss out of this case, the judge implicitly ratifies the many other cases in which he didn’t. And by engaging in such a self-indulgent display of his own personal purity, he sidesteps the more important questions about how to reconcile one’s obligations to the system one has decided to work for with one’s ethical obligations as a human being. I think Robert Cover would agree with me about that one too.

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