In his 2024 Year-End Report, Chief Justice John Roberts warned that the rule of law is threatened by four types of “illegitimate” activity: violence against judges, intimidation, disinformation about federal courts, and open calls to defy lawful judgments. He emphasized rising threats to judges and their families and the corrosive effect of sustained personal attacks on judicial independence. Justice Roberts urged vigilance in defending the judiciary’s institutional role rather than individual judges’ reputations.
Recent episodes illustrate the kinds of pressures he had in mind. In 2020, for example, a gunman targeted the home of federal Judge Esther Salas after publicly railing against her work from the bench; the incident killed her son and gravely wounded her husband. In other cases, judges have faced discipline for overtly partisan or inflammatory online activity, such as political Facebook commentary, offensive email chains, and even a social media post endorsing violence against Muslims. Both the impartiality and independence of the judiciary have come under public scrutiny, with attacks coming from across the political spectrum.
Perhaps it was no surprise, then, that Justice Roberts’ concerns in the Year-End Report were explicitly cited in new ethics guidelines for judges published by the Committee on Codes of Conduct, a part of the Judicial Conference of the United States. Last Thursday, the Committee issued an advisory opinion on judicial speech and civic engagement, which frames judges’ ability to speak out in defense of the “rule of law” and judicial independence as a constrained but important response to those same illegitimate attacks.
Overview of the Advisory Opinion
The new guidelines are titled “Ethics Considerations Related to Public Speech and Civic Engagement by Judges” and are published as Advisory Opinion No. 118 in Volume 2B, Chapter 2 of the Guide to Judiciary Policy. The code of judicial conduct applies to most federal courts and U.S. judges, but the U.S. Supreme Court, as of 2023, has its own self-enforcing ethics code. Federal judges and judicial officers who violate the code of conduct can face disciplinary action.
Substantively, the opinion starts from the premise that judges may engage in a broad range of extrajudicial activities (like speaking and writing on both legal and non‑legal topics), so long as those activities do not detract from the dignity of the office, interfere with judicial duties, compromise impartiality, or lead to frequent disqualification.
It then builds out what that means in practice by reaffirming that judges may speak on “core judiciary matters”: the structure and role of the courts, the importance of judicial independence, the need for adequate funding and security, and efforts to improve court administration and the legal system more broadly. It clarifies that judges may address these topics in a variety of settings (bar association programs, law school events, civic‑education forums, and scholarly writing) so long as they focus on institutional concerns rather than defending particular judges or cases. The opinion also indicates that judges may explain the legal system and procedural rules in general terms, even when those explanations occur against the backdrop of controversial litigation, provided they avoid commenting on the merits of pending or foreseeable cases or appearing to urge specific outcomes.
When Judges May Still Speak Out
The opinion draws sharper attention to the constraints imposed by certain Canons in the judicial code. For example, Canon 2 requires judges to avoid not only actual bias but also the appearance of bias, so the opinion warns that even accurate public statements can be problematic if they sound one‑sided, personal, or retaliatory, especially on issues likely to come before the court.
Canon 3A(6) is read strictly to bar judges from commenting on the merits of pending or reasonably foreseeable cases in any public forum, including speeches and social media. The opinion notes that “explaining” a controversial ruling in public can quickly escalate to improper judicial conduct.
Canon 5 bars judges from engaging in political activity (such as endorsing or opposing candidates, speaking on behalf of political organizations, or making political contributions) to protect the appearance of judicial neutrality. The opinion leans on this Canon to mark the edge between acceptable civic engagement and prohibited politics. It warns that even law‑related civic activity is construed narrowly when politics are nearby, to avoid any reasonable appearance that a judge has aligned with a party, cause, or fundraising campaign.
Practical Takeaways
The opinion signals that judges have some room (and, in appropriate circumstances, institutional reasons) to speak in defense of the rule of law, but only within carefully cabined boundaries designed to preserve public confidence in their neutrality and the integrity of the judiciary as a whole.
The Committee’s opinion will not resolve every ethical issue about when judges should speak, or how sharply they may answer bad‑faith attacks. It does, however, give the federal judiciary a clearer common language for thinking about those questions, rooted in familiar Canons but adapted to contemporary pressures. For lawyers, that framework offers both a roadmap for advising judicial clients and a set of expectations to bear in mind when evaluating judges’ public statements—and when deciding whether a given comment truly threatens the rule of law.
Related Resources:
- Concern From Many Judges as Rhetoric Escalates and Threats Keep Increasing (FindLaw’s Practice of Law)
- Wisconsin Judge Resigns After Being Convicted of Obstruction for Helping an Undocumented Immigrant Evade ICE (FindLaw’s Practice of Law)
- Magistrate Judge’s Rebuke of Lindsey Halligan Puts DOJ’s Case Against James Comey in Peril (FindLaw’s Practice of Law)
