Paying Judges to Speak

Why would a chief justice of a state supreme court direct his court to enter into a no-bid contract worth $700,000 with a public relations firm? Following an expose in the Raleigh News & Observer, some North Carolina citizens are wondering about that. This fishy story begins with Chief Justice Mark Martin paying $17,000 to assemble a slick video and speech for his presentation to federal judges in Charleston, S.C. 

Two days before the speech, he modified this public speaking contract to add $549,500 for a year’s worth of public relations for the state court system—features such as monthly fee of $10,000 for the firm to monitor Twitter and Facebook, and another $10,000 a month for graphic design of newsletters, brochures and court websites. More work was tacked on bringing the full contract to more than $700,000.

So far, there is no suggestion of illegality or an ethics violation. There is a broader context for this odd arrangement. Justice Neil Gorsuch is scheduled to speak at a luncheon celebrating the 50th anniversary of the conservative group, The Fund for American Studies, on September 28. The venue is the Trump International Hotel in Washington. The group occasionally files friend-of-the-court briefs, a conventional way that groups and people who are not parties in litigation to make persuasive arguments to the Supreme Court. Nothing about Justice Gorsuch’s speech is illegal or unethical.

There is no information about whether Justice Gorsuch will be paid to speak. However, if he is paid a fee, there would be nothing illegal and unethical. Justice Antonin Scalia took 23 privately funded trips in 2014 alone to such places as Hawaii, Ireland, and Switzerland.

An Illinois judge will answer an ethics complaint alleging that he gave paid speeches. However that matter is resolved, the examples of Chief Justice Martin, and Supreme Court Justices Scalia and Gorsuch show that high-level judges transact business with public interest groups and vendors in the course of doing their jobs.

For all of these judges, no one has credibly alleged that their judicial opinions were the product of improper influence. For some, the matter ends there; but for others, these speeches appear to diminish the office of the court. More to this point, why do these judges appear before groups that align with their ideologies and not make themselves available to groups with opposing or different views? In that respect, these judges behave more like politicians than judges, though that line is blurring.

We are at a crossroads for defining the public role of judges. The traditional view is built on the concept of separation of powers. This explains why our constitutional framers wanted to shield federal judges from the hot-and-cold winds of politics.

If we are no longer interested in a more reserved, less political type of judge we should consider a new architecture for courts. In civil cases, instead of being seated above us in black robes to convey an aura of authority and neutrality, our judges should sit at the head of a conference table, wearing business attire. This is the norm for tens of thousands of arbitrators (private judges) in the U.S. The informality does nothing to diminish the quality of justice. If judges want to engage the public at eye-level, let’s dispense with the hypocrisy that they are superior to us and bring them closer to us in the courtroom.