In 1984, the United States Government Accountability Office (GAO) reviewed a report alleging that federal judges improperly used funds to “influence pending legislation.” Specifically, the concern was that judges might have misused resources allocated for administrative uses. In their findings, the GAO determined that there was no such misuse and that judges were free to express their views on legislation to Congress, ending the episode with little fanfare. And yet, the absence of subsequent concern highlights the lack of seriousness with which the issue of judicial lobbying—the act of judges voicing opinions to and requesting legislative action—is treated.
In a governmental system built on the foundation of the separation of powers, where judicial independence and credibility are derived from their detachment from the political branches, one might expect that such behavior would be heavily frowned upon, if not outright banned. Yet, judicial lobbying exists both formally and informally throughout all levels of government in the United States. In 1939, Congress created the Administrative Office of the US Courts (AOUSC), which liaises with the legislative and executive branches while collecting and analyzing detailed information and statistics on courts’ workloads. At the state level, judiciaries often partner with their respective state’s bar associations to educate and influence the legislature, and research has found that many state courts employ staff dedicated to creating the court’s legislative agenda and lobbying legislatures, particularly for court funding. While judicial lobbying typically restricts itself to issues that affect a court’s funding, workload, and jurisdiction—and largely avoids issues of policy—requests of any nature make judges vulnerable to partiality and corruption in violation of the principles upon which the United States governing system was founded. Rather than engaging in lobbying activities, federal and state judiciaries should focus solely on providing legislatures with informative and analytical information regarding the court’s budget, workload, and processes. By doing so, judiciaries can ensure that legislatures have the necessary information to fund the courts and make decisions, all while protecting their own independence and impartiality.
In Federalist No. 78—published in 1788—Alexander Hamilton argued for the importance of the judiciary’s independent and impartial role. Courts are to be the “bulwarks” against “legislative encroachment,” he wrote, adding that the “independence of the judges is…requisite” to protect the Constitution and individual rights. Nearly two centuries later, the American Bar Association (ABA) adopted the Model Code of Judicial Conduct, which, by formalizing ethical standards for judges, expanded on Hamilton’s vision of an independent judiciary. Among the code’s rules are that judges must perform their duties “fairly and impartially,” and that the duties of the judicial office must “take precedence over all of a judge’s personal and extrajudicial activities.” Further, the rules declare that it is not enough for a judge to avoid being influenced by others; rather, they must ensure that they do not even “convey…the impression that any person or organization is in a position” to influence them. Though this code and Hamilton’s writing are not legally binding, they provide guiding principles with which to evaluate judicial actions. Broadly, they emphasize that independence, impartiality, or the appearance of impartiality must be of utmost priority to a judge, superseding even personal interests.
Judicial lobbying violates these ethical principles by making judges vulnerable to self-interested legislators and questionable quid pro quo deals. Legal scholar Neal Katyal found that in the early days of the United States, judges regularly advised legislators by way of “back-room discussion,” or informal channels through which judges could have bargained with political operatives. Without transparency, such modes of lobbying create an opportunity for a judge to agree to take a particular action—say, rule a certain way in a given case—in exchange for a victory in the legislative arena, all while flying under the radar. Even if no such deal takes place, the existence of an informal, unmonitored conversation between a judge (or a judge’s representative) and a legislator would surely violate the ABA regulation against creating the appearance of influence. Further, even if done publicly, judicial lobbying can also compromise a judge’s ability to remain impartial. For instance, in the 1930s, United States Supreme Court Chief Justice Charles Hughes wrote of his opposition to President Franklin D. Roosevelt’s court-packing plan in a letter to a senator. At the same time, Hughes frequently flip-flopped between upholding and striking down various aspects of Roosevelt’s New Deal program. This is not to say that Hughes was necessarily beholden to legislators whose support he counted on to oppose Roosevelt’s court-packing effort, but he at least made it reasonable to wonder whether or not his decisions were at the behest of those legislators. At worst, it is possible that every time Hughes ruled on a Roosevelt program, he was told by the legislators on whom he depended—and who knew of his requests regarding Roosevelt’s plan—which way to rule.
It is certainly possible—likely, even—that Hughes never compromised his judicial impartiality for his lobbying goals. Yet, in today’s political environment, in which there are many clashes between judiciaries and legislatures, it is plausible to imagine a scenario in which a legislator demands a judge or a court to rule a certain way before honoring their request. These actions are not unprecedented; over the past several years, lawmakers in Alaska, Ohio, and North Carolina have cut budgets and eliminated positions of courts that have gone against their will. In these instances, the legislatures took proactive steps to hurt the judiciary—it would be even easier for them to passively reject a court’s lobbying request than to punish it.
Rather than allowing judges to ask legislatures for particular actions, courts should solely provide objective and analytical information to legislatures without indicating preferences for any given measures. By doing so, courts prevent legislators from taking advantage of perceived vulnerabilities while simultaneously ensuring that legislators have the information they need to make educated decisions. Further, doing so would not increase courts’ responsibilities, as the AOUSC and other administrative offices already collect extensive data that can be—and is—shared with their respective legislatures. There is also a difference between judicial lobbying and instances in which legislatures specifically ask judges for input, and there is no reason that judges should not comply with these requests, so long as their input remains informative rather than advocative—that is, limited to describing relevant practices and administrative constraints rather than recommending that a legislature adopt or reject a particular policy or provide increased funding.
It is important, of course, to recognize that judiciaries are never truly independent. Most judges are appointed and confirmed by politicians, while the rest are elected by the people, creating avenues through which ambitions for power and promotions can influence judicial decisions. Further, courts will always depend on legislatures to determine their funding, jurisdiction, and resources. Regardless of the inherent intertwinedness between courts and the other branches of government, measures to increase judicial impartiality, independence, and credibility are still worthwhile. By foregoing judicial lobbying, courts would be doing exactly that.