This month, the U.S. Judicial Conference issued new ethics guidelines, a publication that rarely attracts attention beyond a small circle of legal nerds. These guidelines, however, are not just the usual tweaks on rules governing free meals or travel. They include a new policy that could materially alter the character of the American courts, allowing judges to engage in commentary to rebut what they deem “illegitimate forms of criticism and attacks.” It is not just injudicious, it is dangerous.
Over two centuries ago, the Framers had to sell the Constitution to skeptical states, leery about yielding power to a central government, including federal courts. In Federalist #78, Alexander Hamilton sought to put these fears aside and assured the states that the federal judiciary is “the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
One can certainly disagree with Hamilton whether history has borne out his prediction that the court would have the least capacity to “annoy” others in our system. However, Hamilton’s pitch would later be reinforced by the adoption of apolitical ethical standards in our courts that separated them from political activities and commentary.
It did not begin that way. Early federal judges, including Supreme Court justices, were often openly partisan. Federalist judges took active roles in hunting down Jeffersonians under the infamous Alien and Sedition Acts.
That changed as the nation embraced a new model of judges who would stand apart from politics. While judges often reflect the ideological views of the presidents who nominated them, they have largely followed rigid rules that have prevented them from engaging in political commentary. Judges are expected to address the legal issues in their opinions and leave political commentary to others regarding the implications or basis of those opinions.
It has not been a perfect system. Recently, some of us have criticized judges who have made overtly political statements in their opinions or in public. The deviation from the traditional line of judicial silence has grown in recent years.
I previously wrote about this pattern of extrajudicial commentary, including inappropriate commentary in court statements and opinions. These comments often undermined the integrity of the court and the public’s faith in the neutrality of our judges.
District Court Judge Tanya Chutkan, an Obama appointee, was criticized for failing to recuse herself from the Special Counsel’s case against President Donald Trump after she made highly controversial statements about him from the bench. Chutkan lashed out at “a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was still under investigation at the time, and when Trump was charged, Chutkan refused to let the case go.
Chutkan later doubled down when asked to dismiss a case due to Trump pardoning Jan. 6 defendants. After acknowledging that she could not block the pardons, she proclaimed that the pardons could not change the “tragic truth” and “cannot whitewash the blood, feces and terror that the mob left in its wake. And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power.”
One of Chutkan’s colleagues, Judge Beryl Howell, also an Obama appointee, denounced a Trump policy as “a revisionist myth relayed in this presidential pronouncement.”
Then there is Judge Amit Mehta, another Obama appointee, who has been criticized for conflicted rulings in Trump cases and his bizarre (and ultimately abandoned) effort to banish January 6th defendants from the Capitol. He called Trump’s policies “shameful.”
D.C. Circuit Judge Reggie Walton called Trump a “charlatan.”
U.S. District Judge Robert Pratt of the Southern District of Iowa made public comments calling Trump a “criminal.”
Other federal judges have made other public statements denouncing Trump and Republican priorities. Even before this change, these judges felt that they could engage in such political declarations.
Even Justice Ketanji Brown Jackson declared publicly how she sees her position as a judge “as a wonderful opportunity to tell people in my opinions how I feel about the issues, and that’s what I try to do.”
Last year, the Supreme Court condemned U.S. District Judge William Young, a Reagan appointee, for his attacks on Trump as a bully bent on “retribution.” He also accused the administration of “racial discrimination” and “discrimination against the LGBTQ community,” and asked in one order, “Have we no shame?”
There is no paucity of such criticism in our country. Many pundits have leveled such attacks against the President, but this was a sitting judge. These judges are using their offices to amplify their personal outrage over policies. The result is that they are erasing the distinction between our courts and our politics.
Given these increasingly injudicious comments, one would think that Chief Justice John Roberts and the Judicial Conference would seek to tighten, not loosen, the limits on judicial commentary. In this “age of rage,” it is more important than ever that our judges stand above the political debate and distemper. The public needs to look to one branch that is detached and deliberative, rather than participants in our national pandemonium.
I have long admired Chief Justice Roberts and have been sympathetic to his efforts to defend the courts, including his response to personal attacks on judges by the President and others. I have also opposed calls to impeach judges such as James Boasberg despite my strong disagreement with some of his past opinions.
However, this ill-conceived change could not come at a worse time. Just as federal judges are raising eyebrows over their extrajudicial comments, the Conference is giving them a green light for such commentary.
What the new advisory opinion calls “measured defense” of the judiciary is so vague that the most irresponsible judges are likely to pour into the breach. They can now speak out against any threats that they deem are “undermining judicial independence or the rule of law..regardless of whether these comments rise to the level of persecution.”
In 2024, Chief Justice Roberts spoke of activities that “either threaten the judges themselves,” including “Violence, intimidation, disinformation, and threats to defy court orders.”
Many of us supported him in those comments. The Chief Justice has historically spoken for the bench on such threats.
Now, however, he and the Conference have enabled other jurists to engage in such commentary to the detriment of the judiciary as a whole.
The added freedom afforded to judges to engage in commentary will do little to change the debate. It may, however, greatly erode the trust in what was once considered “our least dangerous branch.”
Jonathan Turley is a law professor and author of the New York Times bestseller “Rage and the Republic: The Unfinished Story of the American Revolution.”
Here are the new guidelines: New Judicial Guidelines
Turley was laser focused on the judges and completely ignored the reason why we’re seeing more extrajudicial commentary. Trump. Yes, Trump. He left out the biggest reason why judges are loosening the rules a bit so they can defend themselves against Trumps direct personal attacks on judges he does not like and his administration’s blatant lawlessness, ignoring court orders, and outright lying to judges to circumvent basic constitutional rights because they are in inconvenient obstacle to his rapid agenda implementation.
The professor, as usual, laid his focus on Democrat appointed judges and sort-of bypassing some Republican judges in his criticism. Big surprise.
He slightly mentioned Chief Justice Roberts pushback against the Trump administration’s personal attacks on judges. Which, again, traces right back at Trump and his administration. Turley leaves out the sad fact that this all started when Trump come into office and attacked every judge who presided over civil and criminal cases against him. He went as far as attacking a judge’s family, witnesses, and prosecutors and it earned him well deserved gag order/s.
Judge James Boasberg (2025): After Boasberg halted the administration’s mass deportation efforts, Trump called him a “Radical Left Lunatic” and “crooked”, demanding his impeachment.
Judge Gonzalo Curiel (2016): Trump famously attacked Judge Curiel, who presided over the Trump University lawsuit, claiming he had an inherent bias due to his “Mexican heritage” while Trump was campaigning to build a wall.
Judge Arthur Engoron (2023–2024): During his New York civil fraud trial, Trump labeled Engoron a “very hostile judge” and attacked his wife on social media, accusing her of bias.
Judge Juan Merchan (2024): In his Manhattan criminal case, Trump frequently called Merchan “corrupt” and targeted Merchan’s daughter, calling her a “Rabid Trump Hater” because of her political work.
Judge James Robart (2017): After Robart blocked his initial travel ban, Trump referred to him as a “so-called judge” whose ruling was “ridiculous.”
Judge Lewis Kaplan (2024): During civil defamation proceedings, Trump claimed Kaplan “hated President Donald J. Trump more than is humanly possible” and called him a “terrible person.”
This is a small sampling of Trump attacking judges and threatening the integrity of court proceedings.
What Turley did not say is how these judges at first exercised restraint in the face of unrelenting personal attacks. Some judge’s comments were directed at Trump administration AUSA’s and DA’s who were either arguing in extremely bad faith or deliberately frustrating court proceedings to delay the process.
Comments by judges Turley talks about were rare before Trump came on the scene. Now after 10 years of Trump insanity it’s become common enough that a change in ethics rules became inevitable.
“the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Quoted from Hamilton by Professor Turley, as a senior lay citizen I can accept that Hamilton wrote that but not that it applies, to anything. Pursuant to Article VI of the Constitution, it “…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…” So, I don’t accept that there are, or ever were, any “political rights” in the Constitution; only ‘law and order.’ And, if the tenets of the Preamble had been enforced from the start (every state that ratified the Constitution also ratified the Preamble, in it’s entirety, not just the “We the People…” part (as Reagan misspoke it) we probably wouldn’t be in the raging bipartisan pickle we are in today. The right way to deal with all of the chaos is to vote the incumbent violators out of office every election day which, of course, would require a lot of adult Americans to pay a lot more attention to reality than to various forms of mere entertainment. Charles G. Shaver
I WHOLLY agree with Professor Turley on this.
I am reminded of the very recent unprofessional commentary from district judge Fred Biery regarding the young boy “Liam” (you know, the one in the blue bunny hat re-imaged ad nauseam by media) who was detained alongside his father (who asked that Liam stay with him):
Judge Biery engaged in what I consider wholly inappropriate and unprofessional attacks, to wit:
“The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children”
and,
“Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency…”
Not only was his language a bit of unprofessional overkill, but he engaged in assigning motive to the subject actions, which to me, warrants address.
I have NEVER been before a judge who would voice or engage in such personal attacks, I remain stunned.
I have NEVER been before a judge who would voice or engage in such personal attacks, I remain stunned. You wrote “would”. Why?
Are you a lawyer?
No, he’s not a lawyer. It’s just Estovir, as usual, pretending to be a commenter with real life experience.
(1) Yes, 100% litigation and appellate work as well as publication writing. And you?
(2) “who would engage in…” In addition to the perception of judges to which he negatively contributed, See Canon 2A, 2B and Canon 3A(1) and (3) for example.
Thanks.
Lin,
Well said.
What did he say? Rather on the rant side, I would say.
Actually he (lin) didn’t say anything, he quoted a judge.
Geezzz Turley, your post sent shivers down my spine.
Well gee– If all these Federal judges have a problem with Trump, maybe Trump’s the problem. But strangely Turley thinks all the judges have a problem and Trump is just a harmless innocent. Er, ‘what field of law does Turley teach’..?
We abide by and live in a democracy. Can’t imagine you know what that is. So if the judges don’t like him, get rid of him? You got the smarts of a 15 year old Karen.
Gee – maybe these judges should oversee implementation of Constitutional law as set and keep their stupid political OPINIONS out of the courtroom and to themselves. Why would you take the opinion of these people seriously, their DEI front woman in the highest court is a moron that could not even define a woman.
They live in a God like bubble hovering over a court where they carry significant power and weight. They should not EVER allow their political views and biases to rule their decisions, that’s NOT law and order.
Shakespeare was right!
“maybe these judges should “? Maybe? Should?
Good article. Just two points.
(1) Has the politization gone too far to return to “normal?” Probably.
(2) If judges are allowed to make political commentary, then lifetime appointments must be abandoned. A seven year appointment will put them out of sync with elections, but they alerted to unhappy future possibilities. This may give pause to the likes of Boasberg and Chutkan, and even serve to rein in their mouths.
(3) Furthermore, if a judge is overturned three times in a two year period, they should be assigned a mentor who will review all decisions prior to publishing. Humiliation is the ultimate anathema to judge.
A very rare smart comment from you.
These new guidelines seem to be another stepping stone on the path to the politicized judiciaries of banana republics.
Banana republic here we come.
Come on Man! The Black Robe Illuminati cannot be constrained by stinkin laws, ethics, or elected Presidents. They are anointed Kings and Queens within their special little enclave called the District. A King or Queen does not care what anyone thinks, says, or does, as they ALONE are the LAW in matters before them. For that reason they are self-empowered to ensure all bow in their presence and that any command issued no matter how egregious is followed without hesitancy to include self-emollition! Thank goodness we have such brilliant and ALL-KNOWING omnipotent souls among us that wear the Black Robes of Justice for THEE but NOT FOR ME!
Can’t find any sense in your comment.
Is the U.S. Judicial Conference the same as the Federal Judicial Center which recently released the Reference Manual on Scientific Evidence which is supposed to be an introduction to scientific issues that frequently show up in courts. A 100 page section of this called the “reference Manual on Climate Change” was pure alarmism. Led by West Virginia, a coalition of 27 state AGs sent a letter asking that the entire CLimate Change section be withdrawn and, thank goodness, it has been.
Obama bin Laden declared, “You didn’t build that.” NEITHER DID HE. That hasn’t stopped him and his goons from hijacking everything.
Oh geeezzz.. another one of those stupid comments. Grow up. Really, for your own sake.
I thought judges were supposed to be impartial & decide cases based solely on the evidence presented! Now that we’re living under marxism-light, all of that has been thrown out!
This puts the lie to the idea that a defendant or plaintiff can expect fair and equal treatment regardless of what judge is handling his case. That is clearly untrue. The left always advocated for judges based on race, or sex, or ethnicity. It knows that judges are not fair and impartial. They bring biases to the bench, and force them into the law. In a perfect world, it would not matter what were the judge’s skin color, or ethnic background, or gender. This is clearly an imperfect world, and an imperfect judiciary, especially since Trump.
All judges bring bias and preconceptions to the bench. The good judges put those aside to issue rulings that they may personally oppose. The bad ones, well the Professor has highlighted them in his blog.
So much for the balanced scales of justice and blind justice. Seems that bias and hate will rule us into oblivion. What a sad demise of the legal profession.
demise of democracy and the USA.
And to think that their decisions will be wholly based on their politics. So what does that mean then for their judgments especially vis a vis their dislike of a president i.e., Trump, will that judgment stand if it politically/personally tainted? How will their future judgments be applied if its an obvious, and so stated, attack on a sitting president, what kind of precedent will that have on future cases if they’re purely political instead based on law? I shudder to think.
It could go both ways.
But Reps. are a whiny sort and unwilling to use power for power’s sake. They’ll screw everything up as they always do.
“greatly erode the trust..” How true. More oversight via congress is needed. Does their potential actions to engage in commentary thus inciting widespread civil unrest. That will spark wholesale public antagonisms. I see a civil war coming.
Professor: this is frustrating. For those of us who are NOT judicial nerds, there is no explanation of what the provenance or even status of this rule is. Did it come from Justice Roberts? Is it something that is debated or voted on by the Court or ABA? Is it a proposal or the governing set of standards? Could you elaborate in another post? Sounds ominous but you need to give we, your citizen students and little tutorial here. Thanks,
Worthwhile question. Please people, respond only if you know what you’re talking about. This question is important.
At some point they’ll cross a line and then congress should then introduce strict rules to act like unbiased judges, those who don’t, impeach them and ban them.
Roberts failed us all, failed the USA and democracy.
yes, Roberts failed us all.