Beyond the Opinion: Supreme Court Justices and Extrajudicial Speech

40 Pages Posted: 27 Apr 2014 Last revised: 22 Sep 2014

See all articles by Christopher W. Schmidt

Christopher W. Schmidt

Chicago-Kent College of Law; American Bar Foundation

Date Written: 2013

Abstract

This Article examines how and why Supreme Court Justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting Justices have sought to make to the public discourse when employing various modes of extrajudicial speech — lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of Justices refraining from off-the-bench commentary about their work. I then turn to an analysis of the risks and opportunities for Justices who go beyond their written opinion. I argue that our understanding of the extrajudicial contributions of the Justices has too often been clouded by idealized, historically inaccurate assumptions about the Court and by exaggerated assessments of the potential costs of substantive, controversial extrajudicial speech for the Court’s legitimacy. Compared to the typical Supreme Court written opinion, extrajudicial speech allows for, even encourages, more personalized, more accessible, and potentially more effective pathways of communication with a general audience. By identifying the unique value of extrajudicial speech, I intend this Article to serve as an invitation for a more realistic and constructive discussion about the role of Supreme Court Justices in our constitutional democracy.

Keywords: Supreme Court, Justices, extrajudicial activities, extrajudicial speech, press, legal history, Hugo Black, written opinion, public discourse, law and society

JEL Classification: K30, K39, K40, K49

Suggested Citation

Schmidt, Christopher W., Beyond the Opinion: Supreme Court Justices and Extrajudicial Speech (2013). Chicago-Kent Law Review, Vol. 88, p. 487, 2013; Chicago-Kent College of Law Research Paper No. 2014-22. Available at SSRN: https://ssrn.com/abstract=2429480

Christopher W. Schmidt (Contact Author)

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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