In response to the Supreme Court’s Hobby Lobby decision, Nebraska Senior District Judge Richard Kopf did something that caused some heads to explode. He told the Supreme to STFU. Ironically, the volatility of the decision, which was the reason Judge Kopf thought the Supreme Court’s insertion into such a controversial political issue was destructive, gave rise to calls for Judge Kopf to STFU by some, including some academics.
Lawprof Stephen Bainbridge, who made the specious assumption that Judge Kopf’s post was fueled by ‘thinly veiled” anti-Catholic animus, and later seized upon a joke written by the judge that he never cared enough about in the first place to know happened and still doesn’t grasp (and if Bainbridge doesn’t get it, it can’t be a joke), offered his deep thoughts:
Dude, you really need to STFU.
At Election Law Blog, lawprof Rick Hasen writes:
A judge who blogs should not say “STFU” to the Supreme Court.
Look: this is about respect for the rule of law. Lower court judges should not use profanities to criticize the Supreme Court. Even if you disagree vehemently with the Court (as I do quite often), respect for the institution requires some level of decorum. This is especially true for judges who sit in an inferior position to the Court. Just like a member of Congress should not yell out “You lie” to the President during the state of the union regardless of how much that member disagrees with the President, our social fabric depends upon expressing disagreement in a constructive and respectful way.
Hasen too brings up the “dirty old man” post, calling Judge Kopf “way out of line,” concluding that Judge Kopf should either stop blogging or retire from the bench. Then there’s Jonathan Adler at Volokh, who offers no actual thoughts of his own, but passive-aggressively repeats the thoughts of Bainbridge and Hasen.
The response to Judge Kopf’s most recent post has not been kind. Even some of his regular readers are not amused. For a representative sample, spanning the political spectrum, see these posts from Professor Bainbridge and UC Irvine’s Rick Hasen. Concludes the latter:
Look, blogging is not for everyone, and I respectfully suggest that Judge Kopf either stop blogging or retire from the bench.
That is a polite way of suggesting that perhaps it’s time for Judge Kopf to heed his own advice.
Judge Kopf, being as transparent as he is, posted an email from a Nebraska lawyer urging him to stop blogging, contending that his frankness, his bluntness and his use of words that federal judges rarely utter publicly, was doing more harm than good.
Adler wrote that “some of his regular readers are not amused.” A more accurate statement, based on the more than 120 comments currently left on the post, is that there is overwhelming support for Judge Kopf. And as some of those commenting are fellow United States District Court judges, it appears that he’s hardly in the doghouse even amongst those who might be most concerned about lack of decorum, as is Hasan. There are a handful of people who think Judge Kopf crossed the line, but they are miniscule in comparison to his supporters.
Unlike Jonathan, I have some of my own thoughts on the subject, and I feel uniquely well-positioned to offer them, both to Judge Kopf as well as the academics, the readers, the non-lawyers who have taken his STFU post viral, and anyone else who thinks they are in a position to opine on the continued existence of Hercules and the Umpire.
Anyone who has anything of substance to say about any subject of consequence is going to have people disagree. Often, vehemently. Few, however, will have such an exposed flank as a person who holds a position of consequence as an Article III judge. Historically, none of us outsiders would ever be capable of engaging a federal judge in ordinary dialogue. Judges can hide behind their robes, their benches, and we will address them as “your honor,” never able to question or challenge their real thoughts. Indeed, we would never know their real thoughts, as their only public utterances would be hidden in the mitigated language of rulings and the occasional official platitude.
While Justice Scalia and Judge Posner, for better or worse, occasionally let loose a controversial comment, no judge has offered as much insight into the mysterious world of the judiciary as Judge Kopf. It hasn’t been easy, as he’s come to realize that jokes of his generation sail right over the heads of the children and lawprofs. Worse yet, they not only fail to recognize jokes as such, but mistake them for serious assertions, and get irate. Even when explained, they still fail to grasp that a joke, regardless of whether you agree it’s funny, remains a joke.
He curses a bit too much for my taste, and his plain writing and lapses into vulgar language makes the pompous, prissy academics cry for decorum. He tries to make his writing accessible to everyone, which violates the prime directive of scholars, for whom needlessly murdering thousands of words to mask any cognizable meaning in their writing is a condition of being invited to faculty teas.
Finding the perfect level of thoughtfulness and accessibility, especially on an internet where anyone and everyone can read, is impossible if your purpose is to say anything meaningful. Sure, it’s easy if you’re only giving hugs and smiles, or only playing to one-minute slices of the world who come to confirm their bias. But Judge Kopf isn’t looking to pick up marketing clients, or become a stand out in the Academy by staking a claim in some political turf that will get him invited to symposiums. He’s a judge. The president appointed him. The senate confirmed him. Nobody confirmed you. Or me.
In the process, Judge Kopf has single-handedly done more to restore faith in the humanity of the judiciary than any other judge in the nation. I’ve regularly disagreed with him, but at the same time, he’s given me more insight in the federal judiciary than anyone else in more than 30 years.
To many non-lawyers, especially those who harbor strong antagonism toward judges who they see as one-dimensional demons wantonly destroying lives, Judge Kopf is the first living, breathing judge who offers proof of humanity on the bench.
A great many people have lost faith, lost hope, that our fundamentally flawed system can be salvaged. Judge Kopf, for all he may do “wrong,” has given them hope that there are some real, thinking, caring human beings in robes who maybe, just maybe, can be persuaded to care a little more about what the law does to real people and little less in decorum.
Is it perfect? No, but nothing is. Are we all better for having Judge Kopf expressing his thoughts, even if they occasionally come out in a cringeworthy, awkward way. You bet your ass we are. So to Bainbridge, Hasan, Adler, the Nebraska lawyer, and anyone else who thinks they are in a position to tell Judge Kopf to hang it up, I’ll take Rich Kopf over any and all of you. And fuck you.