The nature of our work means that judges occasionally receive less-than-favorable press coverage. Sometimes this is agenda-driven, sometimes it stems from lack of information, and sometimes it is justified.
But one of the quirks of our system is that judges really cannot hit back when it happens.
Judges are bound by strict rules of judicial ethics. Rule 2.10 of the Code of Judicial Conduct states that a judge “shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” Nor can we “make pledges, promises, or commitments that are inconsistent with the impartial performance” of our duties as judges. Think about how a judge would be able to respond to unfavorable press coverage without violating either of those provisions. Short answer: It is nearly impossible.
For those reasons, most of us remain silent.
Unfortunately, the economics of modern media make this situation worse. For many online sources, revenue is directly proportional to the number of “clicks,” which gives a strong incentive for those outlets to generate sensational headlines, even if they are out of context or misleading. Because of short attention spans or paywalls, many people do not bother to read full articles and draw conclusions from just those headlines.
Recently, the Minnesota Supreme Court issued a decision interpreting a definition within our sexual-assault statutes. The case highlighted an unfortunate gap in the statute, of which most criminal lawyers and judges were already well aware. The Supreme Court does not need me to defend it, but the analysis in the opinion is fairly straightforward and applied the plain language of the statute to the particular facts of the case. The role of the judiciary is not to rewrite a poorly drafted statute, so the decision did not surprise me at all.
However, because the decision overturned a conviction, the headlines nationwide suggested that the Supreme Court had somehow endorsed the act of rape. And although the decision was unanimous, many of the stories emphasized the name of the justice who authored the opinion and included a photo of him. I doubt that justice will issue any statement defending himself.
As elected officials, judges are ultimately accountable to the public for our actions. Most of our hearings are open to the public, and we provide detailed written decisions on many questions of law or fact before us — so the public can better understand how and why we reached a particular decision.
But we are also required to follow the law as it is, not as we want it to be. Every judge I know has issued plenty of decisions where we do not personally like the result but feel duty-bound to reach it. It is a hard part of the job.
For these reasons, if a headline or Twitter summary of a court case offends you, please take the extra effort to read the actual decision or order. The truth might be a little more subtle than the coverage suggests.
Dale Harris of Duluth is a judge in the Sixth Judicial District.