Lynn Adelman of the Wisconsin federal trial court. Credit: ACS, via YouTube

U.S. District Judge Lynn Adelman of the Eastern District of Wisconsin, who has served as judge since 1997, has written provocative articles for years.

In 2017, he authored pieces titled "The Supreme Court's Quiet Assault on Civil Rights" and "Who Killed Habeas Corpus?" But according to SSRN, they attracted 59 and 205 downloads, respectively.

Adelman said he was surprised, to say the least, that his latest article, "The Roberts Court's Assault on Democracy," has been downloaded nearly 3,000 times. It was first posted March 6.

Here is how Adelman's article in Harvard Law & Policy Review begins:

"By now, it is a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball 'umpire who [merely] calls the balls and strikes' was a masterpiece of disingenuousness … The Roberts Court has been anything but passive. Rather, the Court's hard right majority is actively participating in undermining American democracy."

Adelman characterized the current court as tilting toward the rich and powerful at the expense of equal justice and democratic values. "Rather than attempting to counteract the present anti-democratic trends, the Roberts Court exacerbates them," Adelman wrote.

He also had choice words about President Donald Trump: "Although he ran as a populist and promised to promote policies that benefited ordinary people, upon taking office Trump almost entirely reversed course. While Trump's temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party."

Josh Blackman, a conservative constitutional law professor at the South Texas College of Law Houston, criticized the article in a Volokh Conspiracy blog Tuesday: "This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge. Judge Adelman has come close to accusing Roberts of committing perjury—a crime, and an impeachable offense."

Federal judges usually stay in their lane and avoid eyebrow-raising commentary like Adelman's, though it is not unheard of. Consider Richard Posner, a prolific, longtime judge on the U.S. Court of Appeals for the Seventh Circuit. And just a few months ago, U.S. District Judge Paul Friedman of the District of Columbia denounced Trump for his regular attacks on the independence of the courts. A Slate magazine piece on Tuesday evening praised Adelman's article and pointed to the "screeds" uttered by conservative judges, including Trump appointees, in recent years.

As rare as an essay like Adelman's is, it is also unusual that federal judges agree to be interviewed by the news media. Adelman spoke with The National Law Journal about his Roberts article, and highlights from the conversation, appearing below, were edited for length and clarity.

National Law Journal: Do you have any second thoughts about what you wrote?

Adelman: Well, no. I thought it was important to say. I wanted to say them. I didn't say them to create a big firestorm. I didn't say them to kind of get a lot of attention. But I think what I said is right. I mean, I think it needed to be said.

Do you think you've violated any code of conduct prohibiting political activity or bias?

No. The codes encourage us to talk about legal developments. I don't think that's an issue. I mean, we're encouraged because we're judges and we have knowledge and experience and dealings with the law. Look, somebody could say it's stronger than most statements, and that's probably right. But I don't feel a concern about that.

But you do go into areas that are not just the law. You write about Trump policies and things like that.

It's not really policy. I think that was a bit of a backdrop to the article because the whole article focused on really democracy and inequality and economic inequality among other things. So in a sense, I think that the comments about how non-judicial branches of government are functioning and how they're impacting that issue were important to put in there. I think it's fairly scholarly in that respect.

Some of the Supreme Court cases you criticize as aimed toward weakening our democracy have support. Don't the campaign finance decisions have some basis in the meaning of the First Amendment?

Hey, a lot of people believe there is merit to all those decisions, I'm sure. But in my view, I think that the whole court's approach to campaign finance has been, in a word, wrong. They overemphasize the sort of libertarian dimension of the First Amendment. I don't think they really consider the effect of their campaign finance decisions on democracy. The First Amendment becomes a way of striking down almost anything government does to try to make things more democratic, fairer. That doesn't seem right to me.

 Justice Neil Gorsuch, left, and Chief Justice John Roberts Jr., right, walk down the steps of the U.S. Supreme Court in 2017. Photo: Diego M. Radzinschi/ALM

You criticize Chief Justice Roberts individually on his "balls and strikes" comment of 2005. Do you feel like he has done damage to democracy himself?

I mean, he presides over the court. He's the leader. The decision where they said you can't have expanded Medicaid has caused really a lot of problems. I don't know how many states now, 18 states, that still haven't adopted Medicaid. People died because of that. I mean, that decision some way, the constitutional theory about discourse coercing the states came out of nowhere.

What did you think about the chief's statement recently about Senator Schumer's criticism of the Justices Gorsuch and Kavanaugh?

Oh, I don't. Look, I guess I'd like to steer clear of anything political. I guess I've, just, by writing this, I think I've sort of gotten more into it than I wanted, frankly.

 

Adelman spoke to the Wisconsin Legislative Reference Bureau in 2010 about his career:

 

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