Federal Judges Have ‘Limits’ On Speaking About Legal Issues (1)

Federal judges can publicly speak about judicial independence and security, but not all speech about the law is permitted under the courts’ ethics code, according to a new judicial advisory opinion.

The advisory opinion from the Judicial Conference’s Committee on Codes of Conduct, released Thursday, says the ethics code for federal judges and past guidance confirm that judges can talk about the role of courts and related topics, including judicial security and funding the judiciary.

The opinion said there are also “prudent limits” for judges’ public remarks and civic engagement. It pointed to sections of the code of conduct that say judges shouldn’t “detract from the dignity of the judge’s office” and should always act “in a manner that promotes public confidence in the impartiality of the judiciary.”

But the guidance acknowledged that those cautions don’t “lend themselves well to precise definitions, and even seemingly clear limits permit a variety of exceptions.” The committee’s opinion said judges should also consider tone, context, and form in deciding whether to speak, and they should be especially cautious when discussing topics “further removed from the development of the law or the core functions of the judiciary.”

Judges should also be aware that for some “particularly controversial topics,” simply weighing in “might be viewed as taking a partisan position or reflecting a lack of impartiality,” according to the committee.

And talking at an event sponsored by a group “clearly associated with one side of a controversial issue risks creating questions about impartiality,” the opinion reads.

“These concerns may be amplified when a judge’s public statements also seek to influence the conduct of private parties,” the committee added.

The opinion didn’t name any judges or cite any specific instance of public speech by members of the judiciary.

Gabe Roth, executive director of the court reform group Fix the Court, pointed to the opinion allowing for judges to speak out in defense of their colleagues who are facing “illegitimate forms of criticism and attacks.” President Donald Trump and his allies have repeatedly attacked judges who have ruled against his administration.

Roth said the opinion is “a strong step forward for ethics and for judicial independence.”

Federal judges often speak publicly about the role and functions of courts. They have been particularly vocal in recent years about judicial security as threats against judges have increased.

Anonymous federal judges have also pushed back against the US Supreme Court’s emergency docket rulings in the past year, according to reporting by NBC News and the New York Times, as the justices have undone lower court rulings without providing the rationale behind the high court orders.