Here’s a short legal discussion on Twitter of the sort that happens every day, beginning with a question:
‘Tomorrow is our last class before my students' appellate oral arguments! What advice would you give to a first-time oral advocate?’
A practising lawyer responds:
‘Don't collapse at questions. Even if it's aggressive and skeptical, square your shoulders, give your answer and stand tall. (Metaphorically.) You don't need to apologize or give up your position (unless that's a strategic call) or shrink just because a judge is skeptical.’
Another lawyer takes up the baton:
‘Just wanted to follow up on this one: you might think judges want you to be submissive, but that's not true. Many of the most combative judges I know like it if you stand up to them: with respect, to be sure, but firmly.’
But see what – or rather who – comes next:
‘Dillard, C.J., concurring.’
That last tweet comes from no less an authority than the Chief Judge of the Court of Appeals of the State of Georgia. Ironically parroting the language of the courtroom and the law report, he expresses his agreement with the previous tweeter’s remarks about standing up to combative judges.
It’s the sort of topic on which one of our own senior judges might well comment on a training weekend at Cumberland Lodge, or in a seminar at a legal conference. But for reasons discussed in an earlier post on this blog, one simply could not imagine a senior judicial figure in England and Wales participating casually in such a discussion on Twitter. To adapt the words of David Bowie’s song Fashion, ‘They do it over there but we don't do it here’.
US Judges on Twitter
Chief Justice Stephen Dillard is a popular figure on legal Twitter, followed by many British and Irish lawyers as well as those in the United States. He in turn follows many of us over here. Nor is he alone among the US judiciary in being active on Twitter. Texas Supreme Court Justice Don Willett has been described as ‘the most avid judicial tweeter in America’, although he seems to have become less active since his recent promotion (as a presidential nominee) to the US Court of Appeals for the Fifth Circuit. I also follow Judge Steve Leben, of the Kansas Court of Appeals, Justice Beth Walker of the Supreme Court of Appeals of West Virginia, and various others.
If I concentrate on Dillard CJ, it’s partly because he’s written about his presence on social media. In an article in the journal Judicature, published by Duke Law Center for Judicial Studies last year, entitled #Engage – it’s time for judges to tweet, like & share, he said:
‘I think judges have a duty to educate those we serve about the important role the judiciary plays in their daily lives. But in order to do that, we need to rethink the way we engage with the public.’
Although judges must preserve their independence and not become embroiled in partisan politics, that should not require them to withdraw entirely from the public eye:
‘The pernicious perception that a judge must remain cloistered in his or her chambers in order to foster or maintain judicial independence needs to change. I’ll say it again: Judges are public servants. They are accountable to the people, and they need to be accessible to the people, so long as they do so in a manner that is consistent with their oath of office and the code of judicial conduct.’
Obviously there are risks. But the potential for some judges to embarrass themselves on social media is not a good reason to ban them all from the medium. A judge who is capable of behaving in an embarrassing fashion may do so in other spheres of activity, and perhaps it is no bad thing that their unsuitability for the office is exposed rather than shielded from public view.
Accessibility and decorum
Moreover, judges are human beings. They should be allowed to talk about their home life and their hobbies and enthusiasms. Dillard praises Justice Willett for his ‘ability to strike the proper balance between accessibility and appropriate judicial decorum’. A recent tweet by Justice Willett (also posted on Facebook) shows a freshly baked golden loaf in a tin the shape of Texas, with the explanatory message: ‘When you're tired of cornbread shaped like Colorado and Wyoming.’
Plenty of barristers I know show foodie pictures and other home life trivia on Twitter, especially at the weekend. If Lady Hale did the same I don’t think I would question her judgment. She’s perfectly happy to pose for selfies with law students and practitioners. Yet if she were to tweet such selfies, it might be frowned upon by other judges, rather as Lord Neuberger MR, in a speech he gave back in 2012, appeared to frown on the idea of a Lord Justice of Appeal, Sir Stanley Burnton giving his views on mango and passion fruit crème brûlée as an amateur judge on Masterchef. (As the judge who subsequently issued a practice direction permitting live tweeting from court, Lord Neuberger might now be a bit more chill about such things.)
Stephen Dillard the man says,
‘Finally, I want those who follow me on social media to know who I am as a person. I am not just a judge. I am a husband, a father, a person of faith, and I have a life outside of the courthouse. I love reading, history, sports, music, my church, and spending time with my family and friends.’
Commenting on the phenomenon back in 2014 in an article on his website Above the Law (Judges On Twitter: Is This A Problem?), David Lat said:
‘…judges who blog or tweet help improve public understanding of the courts and increase the transparency and accountability of the judicial system. Judges just need to exercise sound judgment — which, of course, is what we pay them to do.’
He is cited by Jordan Singer, professor of law at New England Law, Boston, in The Interdependent Third Branch (Tweeting Judges, Revisited), who notes that one of the functions of social media is ‘to enhance social interaction and create educational opportunities.’ In this sense, he adds:
‘thoughtful use of Twitter is not substantially different from speaking to a bar association or citizen group, or writing a book or article on a topic of legal or public significance.’
Indeed. And I would add one final observation. In a common law system judges must be able to detect, interpret, and reflect in their exercise of judgement, the current social and moral values of the community in whose name and for whose benefit they develop and adapt the law. In doing so, they need to remain part of, and not remote from, that community. If used wisely, social media, including Twitter, can help them to do just that.
In my next post, I shall consider how these questions have been viewed in other common law jurisdictions, such as Australia, New Zealand and Canada.