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.
I am not suggesting that these past statements would be viewed as acceptable under the new rules. However, I fail to understand, in light of such controversial statements, the Conference elected to relax the rules at this time. I fail to see why it is so intolerable for judges to leave such commentary to others as the cost of holding one of these privileged Article III positions in our system.
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. They will now face a slippery slope on what constitutes a “measured defense” by judges eager to further push the envelope on allowable commentary.
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
Discouraging indeed to know the Canons have no teeth. These sacred cows make up the rules that free them from accountability and even tell us they have no binding authority.
Lawyers pick their friends to become judges where they preside over their cases awarding BILLIONS of dollars to their pals.
Texas vs White is a good example of partisanship. The opinion was written by Salmon P. Chase, secretary of the treasury under Lincoln, and he merely parroted Lincoln/Republican claims that the Articles of Conferation, which were replaced by the Constitution, established “perpetual union.” If you actually read the Articles, one will see that they established friendship and cooperation between the states.
Dear Prof Turley,
Once more into the breach, dear friends.
What rules of engagement? Sec. of War Hegseth abolished the “stupid Rules of Engagement” last year. Sec. Hegseth untied the hands of our war-fighters . .. also, no more ‘beardos or fatsos’.
If Sec. Hegseth’s remarks cause any Judge’s spirit to wane, they, too, can do the honorable thing and resign.
*Trump then reiterated “America is under invasion from within” and that we should use some of these dangerous cities as training grounds for our newly unfettered war-fighters .. . and, by extension, any lingering activist Judges.
The United States does not have set “rules of engagement.” Rules of engagement are set for each conflict as it occurs. Personally, I am no fan of Hegseth and am not happy that Trump bombed Iran and question the Venezuela incident, but the Secretary of Defense and his staff are the ones who set rules of engagement, not the military services.
. Another nail, pafessir…
3rd world junk
In my view, in a free country, the actions and performance of anyone who makes decisions which can seriously affect the lives of others, should be closely intensely scrutinized and they should be held accountable in some fashion if they make serious errors. Doctors, lawyers, many professionals, are held accountable in the courts. (As a former MD, now retired, I know what it is like not only to be sued but also to have defend my license at a state board inquiry. In my case that defense was entirely successful but it was embedded in two years of other absolutely ugly events.) Many federal judges are appointed for life and can only be removed by impeachment by Congress. To me this is a recipe for the arrogant and out of control among them to run amok and I think we currently see such arrogance from a significant number of these judges. Do they think that they are perfect and therefore can get away with any remark or decision at any time? Perhaps my painful experience with the legal system is coloring my thoughts but frankly, if a judge errs, that judge should be held accountable and I mean any judge. The almost unsurmountable block placed in the path of those seeking to hold judges accountable, impeachment and conviction, in my view, in reality, means absolutely nothing in terms of properly dealing with judicial arrogance.
I don’t want to know the political opinions of my doctor or my priest, and I don’t intend to share mine with them: Too much is at stake. Given the extended education of any judge, you would expect them to be wise enough to avoid sacrificing the public’s respect by sounding off about politics. Let them come here to Jonathan’s website and spar with Anonymous.
Jon, can you give a couple examples of where judges have been punished for the bias and lawlessness?
It virtually never happens!
It doesn’t happen because judges are right about Trump.
@Anonymous
What is it like to be so subsumed by hatred every day, all day? Do you even remember what good feelings feel like, and do you even know what it means to think of others without recompense? More and more I think that part of the brain simply didn’t get adequate development for younger leftists, and at this point that is anyone under 40.
Are you sure you’re pointing at the correct target? Your parents myelinated your brain, and later, your teachers and professors, not Trump, not the RNC. Are you aware that this drama is largely playing out within the confines of your own mind, and that many, many other people don’t even see it, let alone be bothered by it?
I suppose it could also just be doing what you are told for dollars, and you don’t actually care about any of it, because you are too stupid/ignorant of history to realize that the dollars won’t make one whit of a difference if you are subject to an *actual* totalitarian state. Maybe a combination of both. Either way, you are a child. There would be pity if you didn’t so actively destroy peace for others.
I’m sure AOC thinks she is playing her role and delivering her lines for a ’cause’, and there is conviction there, even if she is a tool, because she is also very, very stupid, and she grew up in manner that was very, very privileged.
People made their own soap and ate turnips during the depression because things were so tight; you are a joke, posting your nonsense with expensive technology on networks that someone else has to pay for. A total joke. Your inclination toward hostility and violence (which is to be expected of children raised the way you were) removes the humor. But we can still laugh at you, all the same. And we do.
If only you knew that peace in your own heart was the answer. You are too thick even for that.
remember Democrats can’t even believe in basic science like man vs woman. They are fascists….set on destroying western society!
Stop indulging them!
What are we supposed to do then?
Sadly Jon Turley still thinks Democrats believe in the Rule of Law
The Democrats including Judges are fighting a Civil War to Destroy America
Open Borders, bankruptcy, lawlessness, drugs, releasing criminals, etc
Judge Robert is a traitor who has PUSHED the COURT LEFT! The recent democrat appointed judges openly IGNORE laws and aren’t punished!
It is a going to get worse!
I am not sure Professor Turley is correct in his appraisal of the new ethics guidelines. We have often been told by conservative leaders that the antidote to false speech is more speech. The examples Turley gives surely make his point. They also portray their authors as bigots, biased, or just plain stupid.
Almost half the founders were lawyers or legal professionals. Half the members of the Senate today are lawyers, and a third of the House members are skilled in the law. With apologies to Judge Howell, the only myth here worth discussing is the one that says judges are not politicians. If this were true, there would be no judges.
Our long history of dealing with bias has taught us how to effectively avoid it and, when that doesn’t work, to effectively overcome it. As potential defendants or plaintiffs, each of us deserves to know whether the judge who has been chosen to review our case is biased, and, if so, there are lawful means permitting us to demand a different judge.
If the rules of judicial ethics prohibited judges from informing the public of their biases, we might be victimized by them and left to wonder what might have been had we only known beforehand, that is, before we trusted them. A better proposal might allow for a formal procedure to permit one to force recusal on the basis of political bias. Now, recusal is left up to the judges themselves who, of course, never see themselves as biased. We might consider tinkering with this idea a bit, although we have to be very careful, lest we create something that’s worse than what we have.
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.
LOL…who…the RINO light-weights who do nothing?
A good example of a stupid commenter.
Well tempered writing. That said, I have been one to call for the removal of Judges that clearly and purposefully ignore, violate or usurp the Constitution and its Supreme Court mandates. It is now clear the Judicial Branch is in the process of overthrowing the other two branches of government. I again call for sanctions for any Judge that is over ruled by an appellate court on violations of the Constitution and investigations of willful disregard for Case Law and Supreme Court rulings. Any refusal by a Judge to recuse themselves based on a provable appearance of bias/conflict must result in stiff financial penalties for those Judges. It is time the Federal Judiciary get back in it’s lane of non-bias arbiters of fact. This movement by this governing body of the Judiciary proves they are way out of their Lane!
Judges have one job. To rule on the law and merits of case. They are not to wade into politics and this has been from the start. Does anyone truly think this is good to have judges make political comments and then rule in a case? You want to undermine the credibility of the court, let the people think judges are ruling on the politics as compared to the law.
I get President Trump is one of most irritating politicians in many years and he gets under the skin of everyone. That’s what he does, but when judges react with public comments, they need to recuse themselves or step away from the bench. That goes for both Democrat and Republican appointed judges.