“It’s Called Lunch”: Judicial Ethics and the Political and Legal Space for the Judiciary to Lobby

It has long been known that governments build partnerships with, and lobby, other governments for resources, for public policy changes, and to fight off encroachments on their power. The independence of U.S. courts is related to its perception of impartiality, fairness in decision-making, and isolation from politics. To some, this means that it is important that court officials remain above politics and resist urges to become entangled in political battles. As an independent branch of government, how do courts enter the political process, interact with other branches, and participate equally in the political process, if they must also remain impartial and appear “apolitical”?

Past research demonstrates that court officials may indeed behave conservatively in their political work out of fear of political entanglement. However, as with any governmental body, the need of resources, creation of policy beneficial to the branch, and to fight off attacks on independence necessitate active and powerful participation in our pluralist, competitive, federalist system of government. I also argue that what judges and court officials know about law and the justice system is imperative for our elected leaders to hear. The judicial voice is important to the creation of good public policy in so many areas of law like family, torts, criminal justice, and how businesses relate to consumers. When lawmakers pursue legal reforms, judicial officials can shed light on unintended positive and negative consequences.

Court personnel are said to face additional constraints on their ability to behave openly and politically in the political process. Some of these constraints are legal and ethical. Some constraints are formal and some are norms of behavior adopted and followed over time as customs. This paper explores past research on how courts lobby the other branches and what we can learn from doing more research on this particular topic. Past research demonstrates that courts lobby other branches informally and formally and that they sometimes do so in a sophisticated manner. Of specific attention here is what state codes of judicial conduct tell us about the ability of judges to engage the other branches and the public on political issues. After assessing state codes, I argue that there is significant political and legal “space” for judges to participate more actively in the political system on topics permitted in the codes like “law” and “judicial administration.” In the end, informal lobbying over “lunch” needs a shift of focus to building lobbying capacity and political institutions inside and outside of courts to do this work.

Article | View PDF | Appears in Volume 56, Issue 2

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