Bonus 210: Federal Judges Speaking Out
A new advisory opinion from the Judicial Conference's Codes of Conduct Committee reinforces the appropriateness of federal judges speaking publicly in defense of their colleagues—and the rule of law.
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly “bonus” issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:
I wanted to use this week’s bonus issue to both flag and reflect upon an “advisory opinion” issued last week by the Judicial Conference’s Committee on Codes of Conduct—a group of 15 judges from across the lower federal courts tasked by the Judicial Conference of the United States (the federal courts’ policymaking arm) with publishing opinions on “ethical issues that are frequently raised or have broad application” in response to formal requests from anyone subject to the Code of Conduct for United States Judges or the Code of Conduct for Judicial Employees (hence the plural “Codes”). As the Judicial Conference’s website explains, “[t]hese opinions provide ethical guidance for judges and judicial employees and assist in the interpretation of the codes of conduct and ethics regulations that apply to the judiciary.”
The new opinion—No. 118—deals specifically with “Ethics Considerations Related to Public Speech and Civic Engagement by Judges.” And although the opinion is written in a typically general (if not frustratingly opaque) manner, it says a couple of important, new things about what federal judges can publicly speak about—at a time in which a number of right-wing commentators have been critical of federal judges for publicly criticizing the Supreme Court and/or the broader anti-court behavior of the Trump administration (including calls for the investigation and impeachment of judges who have spoken out).
In particular, the opinion emphasizes both that the relevant ethics rules “permit judges to speak or write about the independence of the judiciary, or advocate for the rule of law in general, including why both values are crucial to our system of government,” and that they “leave room, in at least some circumstances, for the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law, whether or not they rise to the level of persecution [of specific judges].”
To be sure, the opinion reinforces the longstanding tension that federal judges regularly grapple with in thinking about their public voice, i.e., how to balance the importance of speaking out against the risks that their public (and judicial) behavior could end up being counterproductive—by serving only to undermine public faith in the impartiality of the judiciary. But what is striking about the opinion is what’s new—that, at this moment in the history of the federal courts, the Committee went out of its way to underscore the propriety (if not the imperative) of federal judges speaking out in defense of the rule of law, and against those who would seek to undermine it.
For those who are not paid subscribers, we’ll be back Monday (if not sooner) with our continuing coverage of the Supreme Court. For those who are, please read on.
