When Judges Talk to Politicians

Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution and that inconsistent principles such as term limits must yield to it. There’s this chap called Larry Kramer, you see…

No, I don’t see this happening anytime soon, but bear with me.

Now suppose that the Chief Justice sends the president a letter informing him that the Court would rule that such an election would be invalid. Would such a letter be an abuse of the separation of powers? Might a judge publicly opine about the constitutionality of a proposed law or executive order, save in a judgment? Might he do so privately to the president?

I’m not sure if I see an answer in the Code of Conduct for federal judges. We’re not talking about the kind of political advice that Felix Frankfurter gave FDR. Instead, we’re talking a legal question. But still…

That, very roughly, is the constitutional issue in Canada, where Chief Justice Beverley McLachlin sent Prime Minister Harper a letter, which he told the press he had refused to open. At issue was a constitutional principle, the right of Quebec to have three civilians appointed to the Supreme Court, in order that appeals from la belle province on questions of droit privé should not be decided solely by common lawyers. The government proposed to appoint, as a Quebec judge, a member of the Federal Court who was formally a civilian but whose docket consisted solely of the kinds of cases heard by the Federal Circuit in the U.S. The proposed appointment was within the letter but not the spirit of the Constitution, and one could see this going either way. What the Chief Justice wanted to do was tip off the PM that the Supreme Court would have problems with the appointment, and indeed the Court subsequently ruled that it was invalid. Harper is no fool, and one expects he knew what was in the letter. Perhaps he thought that he had more to gain than to lose in taking on a very left wing Court. That’s what I’d conclude from his public announcement that he refused to open the letter. Bit of a slap in the face, that.

So here you have a politician refusing to accept a letter from the Chief Justice on the grounds that this would violate norms of judicial integrity and separation of powers. Was Harper more Catholic than the Pope? Or is a Chinese Wall required as a prophylactic, to ensure that private communications not stray into a cosy Frankfurter-FDR relationship?

F.H. Buckley

F.H. Buckley is a Foundation Professor at the George Mason School of Law. His latest book is The Once and Future King: The Rise of Crown Government in America.

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  1. Devin Watkins says

    Why wouldn’t that be an advisory opinion? And as such invalid and improper as it is not a case or controversy. The court is saying how it would rule in the future should a case come before it.

    • Devin Watkins says

      Sending a letter to the president wouldn’t violate separation of powers or judicial Code of Conduct. It would be the content of that letter that would be a problem (if it is expressing what the court as a body believes the answer to a legal question to be), because it would go beyond the case or controversy requirement and as such be improper. “These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to” http://press-pubs.uchicago.edu/founders/documents/a3_2_1s34.html

  2. says

    I think its a very muddy area of law, but on the safe side, I’d have to say that a commingling of the branches, in such a way that it could theoretically effect public policy, could justifiably be construed as a violation of the separation of powers.

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