What Can a Judge Say About Football Players’ Protests?

In a recent interview with Katie Couric, Justice Ginsburg discussed San Francisco 49ers quarterback Colin Kaepernick and his practice of kneeling during the national anthem to protest racial injustice. She described Kaepernick’s conduct as “dumb and disrespectful,” compared it to flag burning, and said “I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it.” Is it OK for a judge to say that?

Yes. It’s OK, at least in the sense that it doesn’t violate any relevant ethics provision. The Code of Conduct for United States Judges is here and the North Carolina Code of Judicial Conduct is here. Neither one applies to Justice Ginsburg, as she’s not a North Carolina jurist and the federal code only applies to judicial officials in the lower courts, but they’re helpful guides to what’s permissible for judges generally. Both codes provide that judges can’t make public comments on pending matters, but may speak about the law and the legal system more broadly, as well as on non-legal subjects. There’s no legal action pending or likely regarding Kaepernick’s protests, so they are fair game for comment.

But is it desirable? Even though there was nothing unethical about Justice Ginsburg’s remarks, some people think that judges, and especially Supreme Court Justices, should be more circumspect and should refrain from commenting on public controversies. Lyle Denniston, writing here for the National Constitution Center, notes that jurists often refrain from entering “popular political discourse” in order to avoid “nurturing” the idea that the judiciary is deeply political. Different judges vary in the extent to which they comment on the issues of the day, of course. As the New York Times reports here, Justice Ginsburg herself made some remarks about the current presidential election that drew criticism and for which she subsequently expressed regret.

Justice Ginsburg wishes she had exercised her right to remain silent. Returning to the Kaepernick situation, Justice Ginsburg has since said that she was “[b]arely aware of the incident or its purpose” when asked about it; that her comments were “inappropriately dismissive and harsh”; and that she “should have declined to respond.” Some of her current or former colleagues might not share her sense that her comments were ill-advised. Professor Jonathan Adler observes here that Justice Scalia freely noted his lack of personal sympathy for “sandal-wearing, scruffy-bearded weirdos” who burn flags, even while acknowledging that the Constitution protects that conduct.

Further reading. For those interesting in a more detailed discussion of what judges can and can’t say, the American Judicature Society has extensive materials here, entitled When Judges Speak Up. My former colleague Michael Crowell prepared this useful paper about what gets North Carolina judges in trouble. And of course, the North Carolina Judicial Standards Commission is an important arbiter of judicial conduct for judges in this state.

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