In the wake of Obergefell v. Hodges[i], the landmark decision rendered by the Supreme Court pertaining to how marriage is defined within our country, we must examine the need for judicial civility raised following the decision, particularly the dissent of Justice Antonin Scalia. Justice Scalia’s dissent runs afoul of the rules of civility and professional responsibility which have been adopted in the State of New York, setting a dangerous precedent for Justices of the Supreme Court. Without question, the issue of same-sex marriage has divided our nation and debate regarding marriage equality will continue for many years. Nevertheless, it is vital that those within the judiciary adhere to the standards of civility and conduct and that any decisions rendered from the bench not only rely upon the rule of law, but also respect both individual litigants and society at large with whom they may disagree.
Judges must put aside their own personal biases and emotions to render decisions based upon scrupulous and objective legal analysis while complying with the codified ethical rules. Recognizing the need for judges to set aside their emotions to properly conduct legal analyses, U.S. Supreme Court Justice William Johnson commented, “[I]t is the unenvied province of this Court to be directed by the head, and not the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future decisions of justice, no latitude is left for the exercise of feeling.”[ii] The significance of crafting decisions founded upon the law—rather than emotion—is beyond question and essential to maintaining the public’s trust in the legal system as the public’s belief in the fairness of the legal system is largely focused upon the judiciary. Indeed, U.S. Supreme Court Justice Stephen Breyer has acknowledged the danger of losing the public’s trust in the objectivity of the judiciary: “Deference to the judgment and rulings of the courts depends on the public confidence that those decisions were based on the law and facts. Even with its coercive powers, the judiciary for the most part relies on voluntary compliance with its directives.”[iii]
As suggested by Justice Breyer, the legitimacy of the justice system would be undermined if the public believes that judges can override the law to further their personal convictions. The undisputed need for upholding the legitimacy of the judiciary includes the self-regulating oversight of judicial excess and abuse in any form, including uncivil speech or behavior. To that end, legal scholar Leonard E. Gross has stated that restrictions on judicial speech are appropriate when they serve to maintain the public confidence in an impartial judiciary, noting that “maintaining public confidence in the judiciary is a vital governmental interest justifying discipline of judges whose statements impugn the integrity and impartiality of the judiciary.” He further adds that “where the judge’s speech calls into question his ability to do his job, or if the speech causes excessive harm to the institutional efficiency of the judicial system, the manner of the judge’s speech can be regulated.”[iv] While the need for an independent judiciary is beyond reproach, it is vital that the members of the judiciary act with dignity, civility and professionalism so that they do not undermine respect for their office and the judicial system as a whole.
In the State of New York, lawyers and judges are held to strict codes of professional conduct, including the Rules Governing Judicial Conduct[v]; New York Rules of Professional Conduct[vi]; and, the New York Standards of Civility[vii]. The Rules Governing Judicial Conduct recognize that, “An independent and honorable judiciary is indispensable to justice in our society,” and that, “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that integrity and independence of the judiciary will be preserved.”[viii] The Rules further provide that, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Moreover, “A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.”[ix] The Preamble to the Rules further directs that, “The rules are not intended as an exhaustive guide for conduct. Judges and judicial candidates also should be governed in their judicial and personal conduct by general ethical standards.”[x]
The Preamble to the New York Rules of Professional Conduct instructs each member of the bar to be mindful that “as an officer of the legal system, each lawyer has a duty to uphold the legal process; to demonstrate respect for the legal system…In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because, in a constitutional democracy, legal institutions depend on popular participation and support to maintain their authority.”[xi] The Rules direct that, “in appearing as a lawyer before a tribunal, a lawyer shall not: engage in undignified or discourteous conduct.”[xii] Comment to Rule 3.3 notes, “In adversary proceedings, ill feeling may exist between clients, but such ill feeling should not influence a lawyer’s conduct, attitude, and demeanor toward opposing lawyers,” and, “A lawyer should not make unfair or derogatory personal reference to opposing counsel,” and further, “Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.”[xiii]
The Preamble of the New York Standards of Civility further describes the Standards as “a set of guidelines intended to encourage lawyers, judges, and court personnel to observe principles of civility and decorum, and to confirm the legal profession’s rightful status as an honorable and respected profession where courtesy and civility are observed as a matter of course,” and that, “[the judicial] process cannot work effectively to serve the public unless we first treat each other with courtesy, respect and civility.”[xiv] The Standards direct that, “Lawyers can disagree without being disagreeable;” “Effective representation does not require antagonistic or acrimonious behavior;” and, “Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel parties or witnesses.”[xv] Importantly, the Standards also instruct that, “Judges should not employ hostile, demeaning or humiliating words or opinions or in written or oral communications with lawyers, parties or witnesses.”[xvi]
Within the context of the aforementioned New York State rules of conduct, an examination of Justice Scalia’s dissent in Obergefell v. Hodges arguably violates these rules of conduct given that his dissent directly attacks the United States Supreme Court as an institution and the rule of law. In his dissent, Justice Scalia states, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”[xvii] He scornfully refers to the Court as the country’s “Ruler,” sarcastically suggesting that the Court has assumed a divine capacity and insinuating that the Court has vastly overstepped its powers. Justice Scalia later adds that the Supreme Court acted out of self-importance, going so far as to say that the Court’s decision was an act of “hubris” that amounts to a “judicial Putsch,” evoking a term that is often associated with the revolutionary and violent overthrow of governments.[xviii]
His dissent goes further to denounce the entire Federal system of government, including the judiciary, decrying that, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”[xix] Justice Scalia then evokes a slogan—one of the major battle cries of the American Revolution—stating: “To allow the policy question of same-sex marriage to be considered resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”[xx] Justice Scalia apparently seeking to exacerbate the feelings of division within the States on the issue of marriage, then assails the composition of the Court by referring to it as “unrepresentative” in the context of religion and regional origin of the sitting Justices. While it is highly unlikely that Justice Scalia sought his dissent to be a call to arms for a revolution by States opposing same-sex marriage, his remarks are an unveiled attack on the judicial legitimacy of the Supreme Court and call into question the ability of the Court to operate fairly and objectively.
Unfortunately, Justice Scalia’s criticism of the Court extended further, amounting to a character assassination of the Justices who joined in the majority’s decision. Justice Scalia claims that the majority was not functioning as judges in casting their votes in this matter, thereby directly questioning their capacity to engage in reasoned decision-making as sitting Justices. He then mockingly questions the intellect of each of the majority Justices, opining that “They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since… They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.”[xxi] Justice Scalia then acerbically states, “The opinion is couched in a style that is as pretentious as its context is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course, the opinion’s showy profundities are often profoundly incoherent.”[xxii]
Clearly, the dissent is guided, at least in part, by emotion rather legal reasoning. Such acerbic attacks on fellow members of the bench and such derogatory extra-legal accusations against the Court itself adversely affect the public’s perception of the integrity of the Court. Unlike the dissents of his colleagues, Justice Scalia engaged in an attack on the character of the Justices joining the majority, the institution of the Supreme Court and the very legitimacy of this Country as a democracy, rather than limiting his analysis to his legal view of the Constitution. He suggests that the Court is “impotent” and continuously demonstrates decision-making that is “unabashedly based not on the law.” His comments trivialize his colleagues’ reasoned basis for their views and unfairly demonize the institution of the Court.
It is troubling that those within the judiciary, including members of the United States Supreme Court, have the capacity to render legal opinions such as Justice Scalia’s dissent, which offend the core principles of civility that the legal profession labors to safeguard. Beyond offering a questionable commentary pertaining to this decision, the words of Justice Scalia may have repercussions extending beyond the matter of same-sex marriage. His dicta has resulted in much public discourse wherein he is negatively assessed, not for his ultimate position regarding same-sex marriage, but for the lack of civility which is reflected in his dissent.[xxiii] While it is impossible to determine how his colleagues received the dissent of Justice Scalia, it is likely that his offensive comments have significantly diminished the collegiality of the Justices within the Court. Although Justice Scalia in not subject to the rules which govern the legal system within the State of New York, his dissent serves as an illustration to those members of the New York State judiciary of what statements from the bench may exceed the bounds of the civility and professionalism which have been adopted within New York. It is without a doubt that there will always be differences in legal positions within the legal profession; however, as noted in the New York Standards of Civility, we should strive to disagree without being disagreeable.
By: James L. Hyer, Esq., with contributions by Irving O. Farber, Esq., and Caitlin Baranowski
James L. Hyer, Esq., is a Partner of Bashian P.C., a member of the New York State Bar Association House of Delegates, and a member of the Board of Directors of the Westchester County Bar Association
[i] Obergefell v. Hodges, 576 U.S. WL 2473451 (2015)
[ii] The Rapid, 12 U.S. (8 Cranch) 155, 164, (1814)
[iii] Stephen Breyer, Making Our Democracy Work: A Judge’s View, at xiii, 3-72 (2010); See Also, Judicial Governance and Judicial Independence, 90 N.Y.U.L. Rev. 779 (June 2015), Hon. Anthony J. Scirica, former Chief Circuit Judge.
[iv] Judicial Speech: Discipline and the First Amendment, 36 Syracuse L. Rev. 1181, (1986), Leonard E. Gross.
[v] Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief Administrative Judge, Part 100
[vi] 22 NYCRR Part 1200
[vii] 22 NYCRR Part 1200, Appendix A
[viii] Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief Administrative Judge § 100.1
[ix] Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief Administrative Judge § 100.2(A), 100.3(B)
[x] Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief Administrative Judge, Part 100, Preamble
[xi] 22 NYCRR Part 1200, Preamble § 
[xii] 22 NYCRR Rule 3.3
[xiii] 22 NYCRR Rule 3.3, Comment 13
[xiv] 22 NYCRR Part 1200, Appendix A, Preamble
[xv] 22 NYCRR Part 1200, Appendix A, I(B) Lawyers Duties to Other Lawyers, Litigants and Witnesses
[xvi] 22 NYCRR Part 1200, Appendix A, I(B) Judges’ Duties to Lawyers, Parties and Witnesses
[xvii] Obergefell v. Hodges, 576 U.S. WL 2473451 (2015)
[xxiii] See, e.g., Bradley, William, “’California Not in the West’: Scalia’s Bizarre Sense of Political Geography,” City Watch LA, July 3, 2015 (http://citywatchla.com/8box-left/9254-california-not-in-the-west-scalia-s-bizarre-sense-of-political-geography); Maxwell, Tani, “8 Bizarre Terms Used by Justice Scalia,” Business Insider, June 26, 2015 (http://www.businessinsider.com/antonin-scalia-glossary-2015-6); Speiser, Matthew, “Jon Stewart Skewers Scalia after Justice’s String of Supreme Court Outbursts,” Business Insider, June 30, 2015 (http://www.businessinsider.com/jon-stewart-blasts-scalia-2015-6); Zurcher, Anthony, “Gay Marriage: It’s a ‘judicial Putsch’ warns dissenting Scalia,” BBC News, June 26, 2015 (http://www.bbc.com/news/world-us-canada-33292806).