Is it unethical for Justice Stevens to write and testify about campaign finance restrictions?

Ed Whelan (National Review Online Bench Memos) wrote that it is, under the title “Justice Stevens’s Unethical Testimony”:

Justice John Paul Stevens Stevens retired only from active service in 2010. He remains an Article III judge (eligible to sit on a lower court) and is therefore subject to the same ethical norms that govern the justices in active service. Nonetheless, on top of authoring a book that “offers a manifesto on how the Constitution needs to change,” Justice Stevens has somehow agreed to testify this Wednesday at a Senate Rules Committee hearing on the politically contentious topic of campaign-finance restrictions. I hope that a senator will ask him to explain how it is ethical for him to testify on this matter.

In a further post, Ed elaborated:

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: …

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.”

Josh Blackman has likewise criticized Justice Stevens, though he focuses just on the testimony, and thinks it’s a close question whether the testimony violated the Code of Conduct. (The first of Ed’s posts also suggests that Justice Stevens’ statements in the book are unethical as well.)

I appreciate Ed’s elaboration of his initial criticism, but I think it’s misguided.

Justices and judges of course often speak out on what is broadly called “law reform” — discussions of how the law ought to be improved — and Canon 4 expressly allows this:

A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice….

A judge may consult with or appear at a public hearing before an executive or legislative body or official:

(a) on matters concerning the law, the legal system, or the administration of justice; [or]

(b) to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area ….

[Official comment:] As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.

Note that this expressly includes commentary on “revising substantive … law” (emphasis added) and not just on changing procedures.

Now it is true that Advisory Opinions 50 & 93 have read this somewhat narrowly:

Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation. Such legislation also may spawn litigation likely to come before the judge. Although Canon 4A(2)(a)’s phrase “matters concerning the law” could be broadly construed to embrace nearly all legislation and executive decisions, the Committee advises that the reach of the canon is not that broad and, indeed, was intended to be comparatively narrow.

There will, of course, be subject matter that falls close to the line between the permissible and impermissible categories for consultation with public bodies. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood that litigation relating to the subject matter will come before the judge.

In summary, with the exception noted below, 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.” …

Consistent with this emphasis upon whether a judge brings to bear a special expertise, Canon 4A(2) provides that a judge may appear before or consult with an executive or legislative body or official only to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area at issue. We have accordingly 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….

But even this narrow reading makes clear that judges may appear before legislative bodies when they have “special expertise.” (The scope allowed for writing aimed at the public would, I think, be at least as broad.)

It seems to me that Justice Stevens does indeed have such “special expertise” based on his “judicial experience” when it comes to campaign finance law. Justice Stevens is the one living judge who has participated in the greatest number of campaign finance cases (all except the earliest modern case, Buckley v. Valeo, and the two most recent ones, McCutcheon and Arizona Free Enterprise Club). He has written at length about the subject in many of those cases. He read the briefs and heard the arguments in the cases, and has presumably learned quite a bit about how the campaign finance system works in practice. He has read and written about what regulations are allowed under current First Amendment law, and he has thought at length about what regulations should be understood as allowed.

Since First Amendment cases often turn on judgments about how speech restrictions affect democratic self-government, he has thought at length about what campaign finance restrictions are consistent with democracy (a relevant point when the issue is about whether the Constitution should be amended to allow some such restrictions). He has also written extensively about the First Amendment more broadly — probably more than many Justices, and certainly more than nearly all other judges — and about constitutional law more broadly. I think that’s ample for a showing of “special expertise” obtained by “the judge as a judge.”

But beyond that, even if the case is a close question, Advisory Opinion 50 makes clear that one factor informing a judge’s “best judgment” on the subject is “the likelihood that litigation relating to the subject matter will come before the judge.” Justice Stevens is no longer sitting on the Supreme Court, so it’s certain that no litigation on the subject will come before him. And though Justice Stevens is still a federal judge, and capable of sitting by designation on lower courts, my quick Westlaw search reveals no decided cases in which Justice Stevens actually so sat (as opposed to Justices O’Connor and Souter, who regularly sit by designation). Maybe there are a few that I’ve missed, but at most a few. The “likelihood that litigation relating to the subject matter will come before” him is thus extremely low.

So I see no basis to fault Justice Stevens in either Canon 4 or the Committee’s commentary on Canon 4. Agree or disagree with his views (and I don’t share many of his opinions on campaign finance restrictions), there is no ethical problem with his expressing those views, either in a book or in Congressional testimony.

UPDATE: Ed Whelan responds, writing, “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.” That strikes me as a very odd reading of the Canon and the Advisory Opinions.

First, that there are other campaign-finance experts who also know a lot about campaign finance law doesn’t mean that Justice Stevens lacks “special expertise.” I like to think that I know a lot about free speech law, but there are of course others who know a lot about it, too, and there are doubtless some who know more than I do. Yet I think I still have “special expertise” on the subject, compared to the public and even compared to all law professors (most of whom specialize in other fields), even if it’s not an utterly unique level of expertise. Likewise, I think Justice Stevens has special expertise even if some election law scholars have at least as much. The Advisory Opinions, after all, set forth a “special expertise” standard, not an “unparalleled expertise” standard.

[FURTHER UPDATE: I neglected in my original discussion to comment on Opinion No. 93, which mentions that, “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). But the reasoning in the rest of Opinion No. 93 — which isn’t limited to legislative testimony, but covers all law-related activities — shows that “uniquely qualified” doesn’t really mean “no one else is as qualified.”

For instance, three paragraphs later the opinion makes clear that it is permissible for judges to serve on the American Law Institute and the National Conference of Commissioners on Uniform State Laws, which draft the Restatements (aimed at judges) and Model Codes or Uniform Codes (aimed at legislators), including when the subject matter goes beyond just “the administration of the business of the courts,” and when it extends to “revising substantive … law” and not just “procedural law.” Judges routinely do serve on such institutions, and to my knowledge no-one applies a “special expertise compared to the universe of [substantive law] experts who aren’t judges” in such situations.

Judges who have acquired sufficient “special expertise” on the substantive law in such areas based on their judicial experience are rightly seen — both by the Opinion and by practice — as being sufficiently “uniquely qualified” to allow them to participate in discussions about improving the law, regardless of whether an experience professor or practitioner might have acquired similar expertise. And, again, note that Opinion No. 93 applies the same standard to law-related activity generally, including both testimony before legislatures about law reform and service on bodies that propose law reforms.]

Second, I would think that Justice Stevens’ experience as a judge, seeing first-hand how these sorts of cases are decided by other judges, would give him special expertise of a sort that most other campaign-finance experts don’t possess — again, not that I think that is required for a judge to be allowed to testify on such a subject.

Third, even if this is a close question (and I don’t think it is), I note again that an Advisory Opinion mentions that such close questions should be resolved partly by considering the likelihood of the issue ever coming before the judge in his judicial capacity. And it seems pretty likely that that likelihood is extremely low, cutting in favor of a conclusion that there is no ethical problem here.

[Note: I initially said that Josh Blackman reached a similar result to Ed Whelan's, partly because of Josh's earlier post sharply disapproving of Justice Stevens's then-planned testimony; but I've corrected this to make clear that he thought it a "close question" whether Justice Stevens's testimony violated the Code of Conduct, though he thought the testimony was generally improper.]

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · April 30