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Never having seen Deborah Poritz in action, I have no idea whether the former chief justice of the New Jersey Supreme Court ever operated like “a mature Andrea Dworkin with a hint of Dick Cheney.” Most lawyers would probably agree, however, that it is a bad idea to describe a prominent justice in such abrasive terms. So readers may be surprised that Judge Wilbur “Bill” Mathesius of New Jersey Superior Court was the source of the allusion. It’s actually one of the lesser barbs he directed at his state’s supreme court in a lengthy essay called “ Reflections of a Disreputer,” published in New Jersey Lawyer. Another former chief justice, Alan Handler, was described as the leader of a “judicial swat team of scolds.” Justice Barry Albin was noted for a “scenery-chewing sense of dudgeon.” Justice Jaynee LaVecchia was “anti-intellectual.” As for the court in general, Mathesius skewered it for its “earnest banality,” its “dry rot,” and its “evangelical indignation of Falwellian proportion.” Mathesius made these remarks after the New Jersey Supreme Court suspended him for 30 days for “repeated breaches” of the Code of Judicial Conduct. In Mathesius’ view, his suspension was the consequence of his 2002 opinion People v. Harris, in which he castigated the state’s death penalty process as expensive and pointless, given that no convicted murderer had actually been executed in more than 30 years. He blamed the resulting “mental anguish and emotional expense . . . not to mention the hundreds and hundreds of thousands of public dollars” on Justices Handler and Virginia Long, among other members of the court, who “possess an unalterable predisposition, if not an outright predetermination, against the death penalty.” Mathesius’ opinion did not inspire any changes in New Jersey’s death penalty, but it did make quite an impact when the defendant’s appeal reached the state supreme court in 2004. In a scathing opinion, LaVecchia declared Mathesius’ criticisms “wholly devoid of any function in the judicial discourse” because of its “outrageous, sarcastic, and pejorative comments . . . including gratuitous personal attacks against current and former members of the supreme court.” She effectively banished Mathesius’ opinion from “the published decisions” of the state. Next, Mathesius found himself on the receiving end of a disciplinary complaint charging “conduct prejudicial to the administration of justice” and bringing “the judicial office into disrepute.” After a hearing before the supreme court, Mathesius was found guilty of misconduct and suspended 30 days to have “the opportunity to reflect on his position of authority and the manner in which he exercises that position of authority.” Reflect he did. Five months following the end of his suspension, Mathesius published his “Reflections of a Disreputer.” To Mathesius, the disciplinary action was an “assault on judicial independence.” He denounced the court for its “virulent resistance to self-examination” and a “desire to suppress intellectual exchange” that amounted to “a clear and present danger to judicial independence.” In Mathesius’ view, he had been found “guilty of a crime of opinion” that would inevitably “chill what otherwise should be the unfettered expression of a sitting judge.” NOT �OUTRAGEOUS’ For all his bombast, Mathesius raises an important point. It is crucial that judges have the freedom to decide cases according to their own understanding of the law. The fear of personal consequences can easily distort good-faith judging, and judicial independence therefore requires the protection of decisions that appear wrong, so long as they are honestly wrong. As the California Supreme Court cogently explained in Oberholzer v. Commission on Judicial Performance (1999), the key concept is good faith. Thus, “mere legal error” is insufficient to support a disciplinary violation. A mistake becomes misconduct only with an additional factor, such as “bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty.” Under that sensible standard, it is hard to see that Mathesius’ death penalty opinion amounted to misconduct. Yes, he had some harsh words for several justices, but they were not scurrilous or inflammatory. More significantly, the offending comments addressed the ultimate effectiveness of the death penalty, which is a legitimate issue for judicial discussion. His use of irony and imagery may not suit everyone’s taste, but it would hardly be considered “outrageous” in most circles. Supreme court justices, alas, are rather famously thin-skinned, and they are often unaccustomed to receiving such pointed protests from below. It was probably inevitable that the New Jersey justices would take umbrage at Mathesius’ sharp remarks, but the disciplinary charge definitely has the ring of overkill. But was it really “fatwa lite” as Mathesius claimed? Perhaps not. Mathesius’ Harris opinion actually played a fairly minor role in the disciplinary proceeding. The numerous charges included improper communications with jurors (three times), insulting and inappropriate comments to a fellow judge and her clerk, and abusive treatment of lawyers and defendants (he “exploded and berated” one defendant who rejected a plea agreement). The supreme court opinion suspending Mathesius in fact devotes relatively little discussion to the Harris case, and focuses much more on the many other incidents. Mathesius regards that as a pretense, but some of the charged misconduct cannot be so lightly dismissed. Mathesius had no license to hector other judges or their clerks (one of whom he accosted at a party) and certainly not to bully a defendant into pleading guilty. And so it appears that Mathesius was suspended for both good and bad reasons, with the good ones probably predominating. FUN TO WATCH That makes Mathesius a rather imperfect champion of judicial free speech, but he may yet get the opportunity to make a pristine case. His “Reflections” essay created quite a commotion. There has already been speculation that Mathesius may face additional discipline for “demeaning the judicial office,” in which case he will finally be able to mount a defense based exclusively on the First Amendment. Another confrontation between Mathesius and the New Jersey Supreme Court � peevish justices versus rash iconoclast � might be bad news for judicial dignity, but it would definitely be fun to watch, especially if you enjoy lively writing. Mathesius’ style is far wittier and considerably more literate than most judicial fare. With a flair for imagery and a fine sense of the absurd, he might be the next Calvin Trillin or David Sedaris. For all his panache, Mathesius is unlikely to win. The New Jersey Supreme Court both makes and enforces the rules, and if a federal court were to review the matter, it’s doubtful that Mathesius would find much sympathy for his invective-laden tirade. While there has been a recent trend toward expanding judges’ First Amendment rights, most courts have held that public employees may be disciplined for extracurricular speech that interferes with their duties. Mathesius’ open scorn for higher courts would certainly tend to compromise his effectiveness as a trial judge. Then again, Mathesius probably had more than judging on his mind. With less than two years left in his term, he was obviously auditioning for his next career. I just hope he isn’t angling for my job.
Steven Lubet teaches law at Northwestern University. This commentary first appeared in The American Lawyer , an ALM publication.

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