On New Year’s Eve, Fifth Circuit Court of Appeals Judge Don Willett channeled Rick Astley by tweeting “People of Earth—In 2018, @JusticeWillett will never: give you up, let you down, run around, desert you, make you cry, say goodbye, tell a lie, hurt you.”
Before that, Willett, at the time a justice on the Supreme Court of Texas, tweeted out his son confusing “Eminem” and “eminent,” a picture of three puppies and a picture of cornbread shaped like his home state.
But with Supreme Court Justice Anthony Kennedy announcing his retirement on Wednesday, and Willett’s name appearing on a list of Trump’s potential Supreme Court nominees, the judge’s frequent tweeting last year raises questions for some of judicial impartiality.
Legal scholars say there’s no legal provision prohibiting Supreme Court justices from sharing their opinions online or in speeches. The Supreme Court has maintained that the strict code of conduct that applies to lower court judges does not apply to them, but that doesn’t mean that the legal community looks favorably on justices making public comments.
“I believe those types of comments do considerable damage to the integrity of the court,” said Jonathan Turley, a constitutional law expert and a law professor at George Washington University who has criticized what he calls the “rise of the celebrity justice.”
Social media, he said, has not been a huge problem because of the generational gap. Still, justices have gotten themselves in hot water over the years because of comments made during speeches and other public statements.
Turley mentioned Justice Ruth Bader Ginsburg and late Justice Antonin Scalia as two justices who have repeatedly been criticized for sharing their political views. Ginsburg came under fire and ultimately apologized for her comments about Trump in 2016, and Scalia made public comments on President Barack Obama’s immigration policies and the legal rights of Guantanamo Bay prisoners during his tenure.
“There’s no evidence that this problem is receding,” Turley said. “It has gotten worse every year as justices appear before large audiences and discuss issues relating to cases before the court.”
Judges, especially those on lower courts, largely steer clear from discussing pending or impending cases to avoid the perception that they’ve made up their mind on an issue, said Charles Geyh, a law professor at Indiana University and an expert on judicial conduct and ethics.
“Most courts have said be careful in the way that you deal with your online presence because you have a duty to uphold the impression of impartiality,” he added.
Willett hasn’t tweeted since joining the Fifth Circuit Court of Appeals at the beginning of this year, but it remains to be seen whether or not his tweets will interfere with any potential nomination.
“The way justices have survived the gauntlet is by being as low profile as possible,” Geyh said, but he added that it’s unlikely this Senate would not confirm Trump’s nominee.