A Judge on Twitter

 

 

You might know that I write on and follow the developing literature on the scope of the Constitution’s “office”- and “officer”-language. More recently, Section 3’s “officer of the United States”-language has been litigated in a variety of courts of record. Moreover, the Supreme Court of the United States will apparently opine on this issue soon.

Insights can be found in a variety of fora. So I also monitor what is said on social media, including Twitter. I came across this interesting post.

 

See David O. Carpenter (@DavidOCarpenter) on Twitter (Nov. 21, 2023, 9:59 PM), <https://twitter.com/DavidOCarpenter/status/1727084297562300427>.  

Now before you go—“Oh no! Oh no! Tillman joined the cancel culture crowd!”—that is entirely wrong. I am not commenting on whether a state trial court judge is permitted, as a matter of judicial ethics, to opine on litigation strategy and offer advice to parties in a case in another court. Nor am I suggesting that this judge has his own free-speech right to speak out publicly on a legal issue which is a matter of public interest. Those issues are for Judge Carpenter and others to consider.

I am interested in the substance of Judge Carpenter’s comment.

Judge Carpenter says that “officer of the U.S.” is “repeatedly” used in Mississippi v. Johnson, 71 U.S. 475 (1866) (Chase, C.J.). That’s a canonical or leading case. If you went to law school, it was probably assigned in Introduction to Constitutional Law or Introduction to Federal Courts. Still, I have written on this issue since 2008—Did I really miss this? And it is not just me—many others have written (or recently begun to write on this issue)—Did they all miss this too? So I looked it up. That phrase—“officer of the United States”—appears exactly one time in the report for the case. It does not appear “repeatedly.” Hyperbole is, at best, a legitimate tool for lawyers. For judges, I think it is less than appropriate.

More importantly, the phrase “officer of the United States,” although it appears in the case’s report, it is not part of the opinion of the Court. And, it is not part of any concurrence. It is not even part of a dissenting opinion. Actually, Judge Carpenter is quoting from an editor’s headnote reproducing a lawyer’s argument. (Nineteenth century case reports frequently reproduced the lawyers’ arguments before reporting the judicial decision proper.) So, the Supreme Court of the United States never used the phrase “officer of the United States” in Mississippi v. Johnson (1866). Not even once.

Ours is a dying legal culture. A recrudescence of reason may yet be possible, but only just possible. See generally Seth Barrett Tillman, ‘Practice Tip: Citing Older U.S. Cases—state and federal,’ New Reform Club (Dec. 7, 2023, 7:16 AM), <https://reformclub.blogspot.com/2023/12/practice-tip-citing-older-us-casesstate.html>.

Seth

PS: Do not take legal advice from judges. 

 

Seth Barrett Tillman, ‘A Judge on Twitter,’ New Reform Club (Jan. 6, 2024, 3:59 PM, 8:59 PM local time), <https://reformclub.blogspot.com/2024/01/a-judge-on-twitter.html>;