“We can easily forgive a child who is afraid of the dark. The real tragedy of life is when men are afraid of the light.”

As readers of this blog know, a lawyer I respect sent me a thoughtful and impassioned letter calling upon me to quit blogging. He said I was doing more harm than good. I told him I would seriously consider his suggestion. With his permission, I posted his letter and sought advice.

After reading every comment I could get my hands on about whether I should continue to blog (including over 500 blog comments of all sorts, especially critical comments from law professors such as those found here and here, lots of e-mails going both ways but more than a few from experienced lawyers agreeing with my friend, contrasted with spirited support from prominent federal practitioners like that found here and here, together with encouragement from two Nebraska state trial judges and two federal district judges from other districts*) and after a sincere and thorough evaluation of my motivations in writing this blog, I have decided to continue.

The quotation set forth above** provides the best explanation I can give for my decision. I care deeply about federal judicial transparency, I don’t see much of that and if I quit there would be even less of it and none of it from federal district judges. The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw. I profoundly disagree.

On the contrary, that thinking has brought both the legal profession and the judiciary to the brink of disaster. In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief.

I make one and only one promise. As in the past, I will always try to write frankly, in good faith and consistent with my ethical obligations.*** But candor does require a painful admission.

Like the gross Sancho Panza, I have in the past, albeit inadvertently, sometimes played the earthy and profane foil to the mad knight. In so doing, I allowed myself to become a caricature rather than the teacher of transparency that I aspired to become.

Truly, I will try to do better.


Credit: Sculpture of Sancho Panza in Madrid Spain by Lorenzo Coullaut Valera (1876–1932). Photo credit: Luis García licensed pursuant to Creative Commons Attribution-Share Alike 2.0 Generic license.

Credit: Sculpture of Sancho Panza in Madrid Spain by Lorenzo Coullaut Valera (1876–1932). Photo credit: Luis García pursuant to a Creative Commons Attribution-Share Alike 2.0 Generic license.

*A federal district judge from another district encouraged me to “keep it up” but “tone it down.”

**While this quote is frequently attributed to Plato, some scholars doubt whether he is actually responsible for it. See., e.g., here.

***Compare David Savage, Judge under fire for blog post on Hobby Lobby, LA Times (July 10, 2014) (discussing ethics concerns regarding my post) with Code of Conduct for United States Judges, Canon 1 Commentary (“The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.”) (Last revised March 20, 2014) (Transmittal 02-016); Code of Conduct for United States Judges, Canon 4A(1) (“Speaking, Writing, and Teaching. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”) (Last revised March 20, 2014) (Transmittal 02-016);  Code of Conduct for United States Judges, Canon 4A(1), Commentary (“Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.”) (Last revised March 20, 2014) (Transmittal 02-016); Committee on Codes of Conduct, Advisory Opinion No. 112, (Use of Electronic Social Media by Judges and Judicial Employees) (March 19, 2014) (among other things, setting forth various cautions and considerations when a judge uses social media including blogs) (pp.112-1 through 112-6 of original; PDF pp. 226-231) (Transmittal 02-015). I served on the Codes of Conduct Committee for six years and I take ethics matters seriously. Indeed, I considered long and hard before I decided to blog. As a senior district judge, I came to the conclusion that none of the strictures of the Code or other ethics pronouncements of the Committee barred my blogging efforts although I remained subject to the Code. That remains my position. I add this:

Many federal judges devote time to public service and educational activities. They have a distinguished history of service to the legal profession through their writing, speaking, and teaching. This important role is recognized in the Code of Conduct, which encourages judges to engage in activities to improve the law, the legal system, and the administration of justice.

Rules and Polices; Codes of ConductCode of Conduct for United States Judges, introduction to web site on ethics presented by the U.S. Courts (last accessed July 11, 2013).


76 responses

  1. Dear Judge Kopf: I’m pleased about the choice you made. The legal profession will be better off because of it.

    Matt Pettigrew

  2. RGK,
    I’m glad to hear that you’re continuing. I agree with Matt Pettigrew. Welcome back, and I look forward to future posts. I suspect that the site will be a little different, and that we’ll a few more friends in the comments, and I look forward to it.


  3. Judge , I have to tell you that I am pleased with this news. I certainly understand some of the concern indicated by others, but personally I have always found your blog extremely interesting and insightful. Though the things you say and the way you say them may offend some (mostly because you don’t comport with their thoughts about who you should be)*, I have found your openness and candor very refreshing.

    All the best and thank you,

    *As far as I can tell, the naysayers and others complaining about your blog and the way you present your views as a judge have never stepped foot inside your courtroom. Without that, they have no idea of the consummate professional and extremely fair jurist that you really are.

  4. Glad to hear it. Call it transparency, reality, or humanity–this blog is an enjoyable read and provides a very unique perspective into the view from behind the bench. Keep up the good work and, by the by, really enjoyed your July 4th post.

  5. Thank you, Judge, for coming back. It was the right call. And we are the better for it.

    As for Sancho Panza, though, it’s well to remember that like Lear’s fool, he struggled to keep his master grounded. That earthiness and saltiness, too easily seen as mere coarseness, are functional – keeping the reader/audience engaged and alert and reminding the noble (however mad) that he’s one of us.

  6. This is great news! Good to hear you are sticking it out and improving the discussion surrounding federal courts!

  7. Jeff,

    I wish I had your background in literature. Truly.

    All the best, and thanks a ton for your support!


  8. Yes Judge Kopf, You are a Teacher of Transparency, Law is Not Politics & You do Write Frankly. Always with Honesty & Integrity! Thank You for Continuing to Write & Always Stand Tall & Proud!

    I will Continue to Read as well as become Educated. Me the Sensitive, will Become Stronger for Your Transparency! The Humanitarian Nurse!

  9. There are two qualities that I find most tedious about government in America today:
    1 – a sensation of a heavy veil that surrounds most high level administrations – and a fourth estate which either can’t or won’t pierce it.
    2 – a lack of multiplicity of voices – be it through the absence of new parties or within a cabinet or legislative chamber. If we are to believe the rigid messaging we might think that the President (any president) himself single handedly oversees all the secretaries and makes each decision personally – never sleeping for eight years. If there are other people involved they are simply there to serve his decision making process.

    I fear there is a silent convenient agreement playing out between the electorate and those who serve them to slowly eliminate thoughtful dialog, heated debate, reasoned demonstration from the public square; that caucusing and political platforms have become smoke and mirrors.

    Each side benefits: those above reign mostly unquestioned and those below needn’t tire ourselves with the minutiae of subtlety instead remaining firmly grounded in black and white thinking – which we all know leads to extremism.

    Thank you for stepping out of the ranks.

  10. You do not need what Scott Greenfield calls tummy rubs from the likes of me. However, as someone who discovered your blog through Simple Justice several months ago, and has checked it each morning since then to see what you had to say, I want to thank you for continuing. I sometimes disagree with you–it is beyond me how you cannot see testilying for what it is–but I always find your thoughts illuminating, and the willingness of a federal judge to come out from behind the bench and honestly engage is refreshing beyond belief. We have plenty of false civility in the bench and bar, but damned little honest illumination. I would have hated to see your light turned off.

  11. The last time I checked, the First Amendment doesn’t have an exception to the Free Speech Clause for Article III judges. Yes, it is improper for you to comment on a pending case and you shouldn’t make substantive comments on issues likely to come before you where you would have discretion in deciding.
    In fact, your blog both gives the public insight into the workings of a judge’s mind and it stimulates debate. I think it makes you a better judge to think about these things, articulate them publicly and then read the comments you get.
    Keep it up.
    Don’t quit.
    Remember what Churchill said, “Never surrender, never surrender.”

  12. “The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw.”

    I think most people missed this very critical point.

    Thanks for sticking with it.

  13. …One of those happiest of times when the best decision and the right decision coincide.

    Integrity and candor should never have to hide.

  14. I am just an average citizen, not affiliated in any way with the legal system. I just recently found your blog. The little I have read as been eye opening for me. I was sad to see that you might of quit. Now I am glad that you have decided to continue blogging. Thank You for continuing to blog . I value your input Judge more then you know.

  15. Being a federal judge means never having to say you’re sorry, so that is as close as it is going to get. The notion that a judge should avoid deciding cases brought before him was just scary. All I would do is remind you of this statement:

    “In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief.”

    Our judiciary is broken. The burden of proof is now yours.

  16. Bouldergeist,

    I am not sure I understand your point. That’s probably my fault.

    Anyway, if your point is that I should not have said anything on the Hobby Lobby cases because it might force my recusal in another and later case raising similar matters, I was well aware of that concern at the time of the post. What the critics have failed to uncover is that I long ago recused myself by issuing a standing order for any civil cases relating to abortion and the Clerk would never have assigned such a case to me as a result. If she did, I would refer to my prior order and return the case. So, nothing I blogged about would have caused a recusal had I got one of those cases. I was (long ago) recused.

    The standing order that I refer to was entered on September 6, 2011. The number is 2011-10. You can find it here.

    All the best.


  17. We are so pleased….and proud. As you consider future “earthy” sentiments, please remember that absent the STFU comment many of your commenters would not have found this blog and therefore, much of this fascinating discussion would have never taken place. In our overly noisy, attention discordant world an occasional “shout out” is just OK.


  18. Piece of cake Judge.

    Glad to see that you and the river raft Hercules and the Umpire were able to clear a few early wing dams and eddies without too much consternation. Should prove to be good practice to navigate any known and unforeseen rapids down stream and fortify your bones for portages unknown.

    I hope the past, recent, and future critiques of the river raft Hercules and the Umpire always strengthen its lashings and teach you a few new knots.

    As you and your raft continue your adventure, may you continue to open new channels of communication while sharing perspective every time you share your campfire on the banks and explore new tributaries.

    On the days you set out anew down the river again never fear the uncharted and enjoy everything around you. With any luck and a whole lot of “crazy” no rock pile or grounding will ever “shush” you or your raft away from the struggle and joy of finding and floating through new channels, with a wild-ass crazy fun loving grin on your face, along the way. Those that follow will benefit from the newly charted waters.

    As per those highly critical of the journey you and your raft are on, I hope you always take the time to personally invite as many of them aboard as possible that can stomach it. Even if they shush or or even shun you before or after boarding.

    I hope you encourage even the shy ones, whom for whatever reason choose not to reveal their identity, to participate under alias screen names that satisfies the childhood pirate or astronaut adventurer in their souls.

    Time is a wasting…and rumor has it there are some wild rapids just around the corner down yonder.

  19. Judge, perhaps you should re-read your referenced order as to the effect that “corrosive” and “acidic” words have on “imped[ing] civil discourse” and “lessen[ing] the public’s perception of the federal judiciary”. You might want to take your own advice, in the future.

    By this order and your brief explanation as to your recusal from hearing further abortion cases, you have placed yourself into your own idealogical and political box for all to see. It’s one thing for the public to suspect that idealogy and politics influence any judge’s decisions, it’s another for the judge to speak (or write) and remove all doubt. Thanks for confirming what many of us have suspected or known for some time, that the Supreme Court is not the only “political” court (as another commenter phrased it) in the land.

  20. June,

    Thank you for this and the countless other things your wonderful welcoming family (the Wagoner clan) has provided us after the three kids and I joined it more than two decades ago. All the best.


    PS to readers: June is an incredibly accomplished lawyer. June is also one of my three wonderful sisters-in-law. (Joan’s sisters.) June retired from the government as a member of the Federal Government’s Senior Executive Service. She served as a senior trial attorney in the Federal Programs Branch of the U.S. Department of Justice (DoJ), as an Attorney Advisor to the Special Counsel of the Department of Energy, and as a Trial Attorney in the Antitrust Division of DoJ. She then moved to NASA. She was at NASA Headquarters in a number of senior positions, including: Associate General Counsel for Commercial and International Programs, Office of General Counsel; Advisory Committee Management Officer, Office of External Relations, and Special Assistant to the General Counsel, responsible for the litigation after the Space Shuttle Challenger accident. June provided advice to NASA senior leaders on space commercialization and privatization, provided policy recommendations and drafted/reviewed Agency agreements, provided support to cross-cutting interagency matters and represented NASA in interagency executive-branch working groups and policy committees. June was NASA’s legal expert on commercial ELV launches and cross-waivers of liability, and was the legal member of the NASA team negotiating Launch Service Agreements with commercial and international Space Shuttle customers. After that, she moved as a NASA liason to Omaha and became Special Assistant to the Director of Plans and Policy, U.S. Strategic Command (STRATCOM) where she worked in the areas of Space, Global Missile Defense, Operationally Responsive Space and Strategic Deterrence. She also served as the STRATCOM lead for Global Net Assessment.

  21. John,

    As I have said before you scare me, but I do wish I could write (just a little) like you. All the best.


  22. SRM,

    Regarding your first point, it was not lost on me. You are right to point it out.

    As for your second point, let’s merely agree to disagree. All the best.


  23. Wow. That standing order is something else. In my comment on your “Please Stop” post I alluded to a law review article I wrote at the outset of my legal career, which was closely followed by two false advertising suits in two different jurisdictions. Although their substance is something I believe should be shouted from the rooftops, I nevertheless refrain from “cluttering up” the comments of others’ blogs with such “corrosive” material. Anyone who’s interested can look it up for themselves on Westlaw or elsewhere. The article and the suits effectively left my legal career a shambles before it really began. But I don’t regret it for a minute, for a couple reasons. First, they – these failures – are thus far my magnum opus, and are no more and no less than the only thing I could do. (Hence I take no pride in mentioning them.) Second, they led me to think little of the law and the legal career I have and could have had. That attitude may itself call into question my fitness to practice law, but again, I’m not too worried about it, for the reason stated. But reading your standing order calls up old bitterness, that if I were to express would be every bit as “acidic” as the very worst you could say were you to openly express your reasons for recusing yourself from abortion cases. You saw the “pro-lifers” coming a mile away. The funny thing is, I’m not “pro-life.” Far from it. I don’t even like “pro-lifers.” Nevertheless, the judges who decided the cases that ruined me saw me coming a mile away too. And many, many women have suffered because of it.

  24. Judge, Glad to hear you’ll be sticking around.

    As far as I could tell, the original argument of the lawyer whose letter you published (and of SRM above) when stripped of rhetorical niceties, comes down to the assertion that (1) You’re an unethical dick, and (2) the fact that there are unethical dicks in the federal judiciary is something we should hide from the public.

    As a layman with an interest in the law, but no training or experience, I have no meaningful opinion about (1). I’ve been a member of the blogosphere for about 10 years, and nothing you’ve said is out of line by our standards, but I realize the standards for a federal judge may be more strict. You seem okay to me, but what do I know?

    However, as a member of the public, I take offense at point (2). If your blogging here is revealing unpleasant truths about the judiciary, I think society is probably well served to learn those truths. By way of analogy, suppose you found out your doctor had recently been through a very ugly divorce in which he feels he got totally screwed, and as a result, he has a seething hatred of the legal system, so much so that he orders unnecessary invasive tests on any patient who happens to be a member. This revelation undoubtedly reflects badly on doctors and reduces public trust in the medical profession…but aren’t you better off knowing? Aren’t we all better off knowing that that kind of thing happens in the medical system?

    In any case, although this doesn’t seem like a free speech issue, the traditional free speech response seems appropriate: The best remedy for bad speech is good speech. The people who think you are wrong — be they lawyers, law professors, or other federal judges — are welcome to start their own blogs and make their argument. It would be a fascinating exchange.

  25. Pingback: Mouthy judge who told Supreme Court to 'STFU' will keep blogging « Watchdog.org

  26. It is absolutely my fault, for not making myself clear enough.

    Justice Brandeis once said that if you want the law to be respected, you must first make it respectable.

    My point has to do with peer pressure. I read somewhere that the reason that British judges were so highly respected was that they could be removed via address, and that they kept their colleagues accountable. Here, the attitude is to circle the wagons, and to never criticize a colleague under pain of death, and even you were set upon for breaking the Code.

    A great example was Justice Thomas’s fraudulent EIGA filings. It wasn’t just a “head-scratcher,” but a FELONY. A tax lawyer is going to know the difference between investment and non-investment income, so he couldn’t plead simple ignorance. But you swallowed your whistle.

    Another instance I brought to your attention was judges making up sovereign immunity law, declaring that the Bill of Rights was not an implicit waiver, and that the Bill was unenforceable without an express waiver by Congress. How silly can it get? James Madison, submitting a series of Amendments that he knew were illusory? And no one in the Framers’ generation noticing? When a judge goes that far off the reservation, s/he should be removed from office summarily. But again, you swallowed the whistle.

    And then, there is the bizarre matter of He Who Must Not Be Named. If it is bad optics for five Catholic Justices to do the Pope’s bidding, how bad is the spectacle of judges sitting in judgment of their own case? The difference between fiction and reality is that fiction has to make sense.

    You lionize Justice Jackson, Judge Ross, and Judge Arnold. As well you should. But why can’t you emulate them? Don’t tell me that you aren’t half the man they were. I know better, and I think you do.

    Find your voice. Please save this broken judiciary, or at least try.

  27. I commend your decision and appreciate the reference to times your writing has been more opaque than transparent regarding the matters you sought to enlighten. I tend to the more frank in my life and have therefore, from time to time, failed to hold my tongue when I should have (I suspect much like the instances you reference above). Saying or writing something out loud does not, by the by, always add to the discourse! But there is no chance at all to add to the discourse if you become a vault for all manner of communications. On balance, I think it better to take the chance on embarrassing yourself. Most of the time it will do good, adding to and enlivening the debate. Count this as a positive vote, if not a vote of confidence.

  28. High Plains Lawyer,

    Coming from a very experienced and very good federal trial practitioner from another jurisdiction, I especially appreciate your insights.

    All the best.


  29. If you ain’t scared or scarred enough yet you will be when “they” attempt to shun you…

    The third branch has been rightfully and correctly relegated to be the glacier via our nations set of rules and has been given the thankless task of guarding the “rules”. The Rules needed or not…currently do exist and boy do we got’um by the bucket full. Good, bad, and ugly, necessary or not.

    Those rules guide our game Judge. We all have a lot invested, we all have a lot to lose, we all have a lot to learn, and will all have a lot more to give if we truly want to continue on with the building of something that will withstand all the challenges ahead long after we are dead and gone.

    May the third branch always act accordingly while embracing and being the glacier with all the purity it’s fallible human orchestrators and guild-ed members can muster even when trapped.

    May the glacier always, nearly to a fault if needed, zealously prevent any real or potential future injustice that may be delivered to the real individuals whom are the threads our nation’s cloth is woven of.

    Nations come and go. May ours continue to mature and fulfill its potential on even keel.

    May our judicial glacier; with all of its weight, power, and patience continue on its course and maintain its legitimacy while never shirking the task of taking down any legislative or executive mountain that dare to stand in the path of our nations current constitutional rule set.

    May it never yield to any immediate expediency or convenience, hubris, material gain, safety real or imagined, or maintenance of our nation, it’s equally powerful branches of power, nor any individual within it while always keeping us on a course to assist the journey of the individuals within our nation, our nation itself, and the other nations and individuals that make up humankind.

    I trust, as long as you are able in body and mind you will choose to continue to be a part of that glacier as well as continue with your extra circular explorations upon the Hercules and Umpire raft and its river journey to the ocean. You may never get there but the raft and the efforts you put into it may one day be parts of a ship ready and tested for the oceans old and new ahead.

    Your peers may rightfully at times and needlessly at others fear the unknown natural consequences of your floating journey down the river. They are very concerned that a jökulhlaup of sorts may be in the works potentially one, the likes they have never seen before.

    Neither you or they should be scared of the Jökulhlaup. They come and go. Enjoy the ride and keep being the glacier no mater where the water takes you.

    P.S. In your post that created all of this current hullabaloo in the first place I thought it mighty thoughtful and glacier-like of you not to capitalize the acronym stfu as well as link it’s definition. Keep on flowing “respectfully” wherever the waters take you. Glaciers don’t build dams intentionally, glaciers just do what glaciers do.

    P.S.S. I hope the “crazy” in you one day “scares” me even if you never give up being part of the glacier. If you are of the tidal variety of glacier and your place in the glacier calves someday in the future enjoy every last second of the calving itself and the immeasurable satisfaction of being set “free” only to join the never ending cycle of the waters again.

    There is nothing like the sunlight and rain from above nor the steady current of the waters below to melt you to your soul and bring you home again.

    Enough with the fluffy longitude and latitude check via the cheers and booing alike. Basking in your own temporary situational dynamics and quandaries is distasteful.

    Time to put your raft in the river again Judge.

  30. I did not respond because my reasons to have you continue were purely selfish . I have found that I learned a great deal about what you do and more about life through your blog and now that u have decided I can share my thoughts
    My reaction is
    Be well

    Sent from my iPhone

  31. Frank,

    I really appreciate your thoughts. As you know, despite the fact that you and I will probably never meet, I have been comforted by your kindness in several ways. For a trial lawyer of your experience, recitude, and comitment to doing good to willing share your thoughts and advice is a great blessing to me. Only you know why I used the word “blessing.”

    Thank you my friend. All the best.


  32. As I said before…I am pretty certain…that much you say we will not agree…and not being a lawyer…maybe it is that I am not bright enough to understand…the sometimes twisted logic of justice as applied across our society…as our history shows we are likely to do

    but I do know…to ensure my future freedom…your reasons and my concerns…must be part of our review…how else will we know…if we are running in circles just chasing our own tails…claiming something just doesn’t smell right…so sure that it has to be you

    so thank you for staying and standing up…to commit to have the discussion…that helps us to grow…beyond that clear earlier view of justice…of an eye for and eye…where my rights…can only be diminished by those you so wrongly claim

    please from your perspective…can you explain why as early as 1886…the supreme court in all its’ learned wisdom…believed that the intent of the 14th Amendment was to protect Corporate Rights of Free Expression and Due Process…as their constitutionally guarantied right

    yet at the same time…the Court ignored the Amendment’s true intent and purpose…for more than 100 years

    that is the true ugliness in this case within the scope of our nation’s history that challenges my full understanding…


  33. Raft in the water. Paddles are somewhere in case I am required to go against the current.

    I wish I could write like you. A lot.

    All the best.


  34. Your Honor,

    Yes. Please continue writing. And for what it’s worth you don’t need to “tone it down.” You’re doing alright. Keep up the good work.

  35. “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.”

    Reform in my opinion is an adversarial political process so I can understand why judges tend to become isolated from that process. I agree that isolation is bad but I don’t want to see judges dragged into the sauage ginder either.

    What the rest of us need is relaible information so we can avoid making things worse (a very common outcome). You are one of the few sources of such information and we need other voices besides yours. If your efforts turn out badly there won’t be any.

  36. Judge Kopf – that is great news that you will continue to blog! You bring such a valuable viewpoint to the discourse related to our justice system. Thank you for continuing.

  37. Pingback: The Judge Who Said STFU to #SCOTUS Will Keep Blogging | Election Law Blog

  38. Judge,

    I was glad to hear that you’ll continue to blog. I look forward to reading your future posts.

    Best wishes for your health.

    Nancy Leong

  39. Pingback: Law Blog Week in Review: Your Brief’s Secret Ambition, a New Incubator, & the Fastcase 50

  40. Judge,

    I couldn’t agree with you more about companies being only LIMITED people, not entirely people.

    The concept that businesses are people had to do with their being able to exist, own property, have protection from the government (like all humans in the country), file bankruptcy when necessary and function with legal behavior. Businesses have never been allowed to vote. How could anyone with common knowledge of how they lobby and pervert the legislative function of congress think that they should be able to spend any amount of money to ingratiate themselves with political figures from the president to senators and representatives. They aren’t allowed to vote and they should not be allowed to buy a favorable government — that is the slippery slope that the Supreme Court has put us on.

    I immediately thought we needed a clarifying amendment to the constitution to declare what corporate “people” can and cannot do.

    I got the impression from a Benjamin Franklin biography that among the many things that genius had read was Adam Smith’s The Wealth of Nations. For that reason and because conservatives always refer to the “invisible hand” – that makes all come out right without the hand of government – I decided to read it. The quote appears once (explicitly) and, in other words the same meaning, in one other passage in over 1100 pages.

    On the other hand, Adam Smith devotes many very critical paragraph to the idea that lobbying “merchant and large manufacturers” convince the king or members of Parliament to pass their wonderful ideas for new laws that will be wonderful for all Englishmen. In his view, their suggested ‘good’ laws are to line their own pockets and almost always abuse the other citizens of England.

    I like your plain speaking way of pointing out the court’s error. Their trust of big business is infantile. Keep up the good work.

    Thank you and best regards.

    John W. Touchett

  41. Pingback: Gaming The Record (And Welcome Back, Kopf) | Simple Justice

  42. When men are afraid of the dark is the same as when SCOTUS is afraid of making difficult decisions. Both require stepping into the unknown, sometimes at a high price. Is this not why SCOTUS is given lifetime appointments? To shield them from politics so they CAN make difficult decisions is the reason they are there. Other branches of government are all about what is politically popular. SCOTUS is about what is right – popular or not.

  43. Re: courage, ‘supreme court shut up’, etc.

    Judges need to give up the philosopher king kick, find some courage and character and start observing the Law of God.

  44. Apparently you missed that whole transition from being subjects of a king coronated by divine intervention and holder of all power to becoming citizens of a republic encouraged to think, debate and understand causality in order to make decisions as a group.

    Even with capital letters Law of God feels like Snake Oil to my republican (small r) heart.

  45. Pingback: Danger: Judges Blogging | Double Aspect

  46. I am glad you described the experience of June Edwards, which is awe-inspiring. Perhaps another post about June or even a guest post from June (on the topic of her choice) would be interesting.

  47. In the spirit of republican principles I invite you perhaps to explain through respectful citizen debate how you feel the Law of God does indeed have a place in a secular, three-branch structure. I simply see it as reference to another structure within the republic that citizens are free to join or not.

  48. I probably am bothered by more of your posts than some of my friends, although not because of the language, or in the way that the attorney who wrongly suggested you stop blogging did.

    But I am glad you decided to stay the course.

    As someone who has caught a lot of grief — I’m *still* the only attorney routinely searched at my local juvenile court by the deputies because their department didn’t like something I wrote — I know how easy it is to offend people when one writes about something that one finds so offensive as to warrant strong language.

    Your posts sometimes add to my being discouraged about the law. But at least you are open and honest and say what you think.

    That provides a helpful window to me, when I have a different view, in thinking through how I’d approach and reason with, you were I ever to appear in front of you.

    Thank you for your blog. I wish more judge’s had the courage, and honesty, that you show.

  49. Judge Kopf,

    I am so pleased that you have decided to continue writing your blog, and hopefully to continue both the reverent and irreverent. The title of your answer was profound:
    ………. “The Real Tragedy Of Life Is When Men Are Afraid Of The Light”

    In the back of my mind as I was writing you this evening I remembered there was yet
    another incident involving Supreme Court Justice Scalia. I looked it up and post it here; not to shock the conscience of a dear Federal Judge, or make a comparison to the huge grossness of the afore named Justice, for there is no comparison, but to chastise the holier than thou critics for not having the guts to write Scalia and sit in judgment of Justice Scalia whose manner was and is truly offensive, as they have set upon you.

    “(Smith) snapped the photo just as a reporter was asking Scalia how he
    responded to critics who might question his impartiality as a judge given his
    public worship. The judge (Scalia) paused for a second, then looked directly
    into my lens and said, ‘To my critics, I say ‘Vaffanculo,'” punctuating the
    comment by flicking his right hand out from under his chin.”The Italian phrase
    means about what you think it means. Smith says Scalia knew immediately
    he’d made a mistake because he said, “You aren’t going to print that are
    you?” From the Boston Herald March 2006 (see photo)

    Scalia did not refer to the current vernacular of the youth or use initials, (which I found most appropriate on your part) but what he actually said out loud and on film is:
    “Italian curse words – Gambino Dictionary ” Vaffanculo!” Definition: Fuck you! (literally, go and take it in your ass)

    Charming fellow – not. And said in a church yet.

    I fully appreciated your new zinger at the five Justices’ Hobby Lobby decision:
    ” Law is not politics, but that assertion now requires proof, not mere belief.”

    You are courageous and a fighter and both you and we are better for it.

    Wishing you the best of good health,

    J Kelligesq

  50. Thank you for your kind words. As for the Justice and the church incident, I must say that I was not offended by his raw humor. Say what you will about the Justice, but his outspokeness is refreshing to me.

    All the best.


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  53. I just want to say that you’re one hundred percent correct on your assessment that the general public has grown to despise, DESPISE most of the branches of government especially the Supreme Court. I hope you keep speaking up and giving us insights. Speaking of which, how do you feel about a long term limit for Supreme Court justices 10-15 years maybe; but a term limit nevertheless?

  54. Bearyl,

    Terms limits for the Justices are a terrible idea. First, I trust the Founders and not modern theorists. Second, with term limits you would have more partisan rancor because you would have more frequent nomination fights. Third, term limits would deprive us of the greats like Chief Justice John Marshall, the longest serving Chief Justice in our history. You will remember that it was Marshall who wrote the opinion that breathed life into the Court and made it a coequal branch of government. We would also lose other greats like John Marshal Harlan (the lone dissenter in the Plessy case where he opposed the separate but equal notion as applied to blacks) and Oliver Wendell Holmes (his “clear and present danger” opinion for a unanimous Court in the 1919 case of Schenck v. United States still stands). I could list other reasons but you get the picture. Simply put, the present system, with all its many faults, has generally served us well. There is no compelling reason for change, particularly when you take the long view.

    All the best.


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