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