I don’t care what federal district court judge Richard Kopf says in private about Supreme Court rulings. I don’t care whether I agree with him on the merits or not of the Supreme Court’s Hobby Lobby and Wheaton College rulings. But I do care about this:
The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases? What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?
Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***
Look: this is about respect for the rule of law. Lower court judges should not use profanities to criticize the Supreme Court. Even if you disagree vehemently with the Court (as I do quite often), respect for the institution requires some level of decorum. This is especially true for judges who sit in an inferior position to the Court. Just like a member of Congress should not yell out “You lie” to the President during the state of the union regardless of how much that member disagrees with the President, our social fabric depends upon expressing disagreement in a constructive and respectful way.
Judge Kopf has been totally out of line before. Back in March, he wrote about the “ample chest” of a lawyer in his courtroom and that he’s “dirty old man.”
Look, blogging is not for everyone, and I respectfully suggest that Judge Kopf either stop blogging or retire from the bench. (If Judge Kopf is reading, this is much more polite than me telling you to STFU. I hope you can appreciate that.)