Judges Unleashed

It would be joke-worthy, except for the fact that the decisions serve a dual purpose, and that the purpose is being served pretty well by the tactic.

Those purposes are simple: delay Trump as much as possible, to limit the damage that is done to the progressive agenda, to make it easier for a Democratic president to reverse course, and to delegitimize the Supreme Court in the eyes of the left and center-left, making it easier to pack the Supreme Court next time they have the chance. 

Unfortunately, a new set of judicial ethics is being proposed within the courts that would further the second of these goals: explicitly allowing judges to make political pronouncements from the bench.

...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 (@JonathanTurley) February 18, 2026

It sounds positively European:

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.

Most obviously, this change in the rules (often observed in the breach already) is intended to further the propaganda value of judicial decisions by handing partisan media and other propagandists ready-made and highly credentialed arguments to disseminate to the public. 

"Judge X calls Donald Trump a fascist-nazi-anti-constitutional poopy head." They can make the accusations as if they came ex cathedra, instead of just hurling their own insults as partisans. 

But as Jonathan Turley points out, the judicial branch's power largely stems from the prestige it has acquired over the centuries, and legal systems serve their purpose only when people believe the process is fair. The more obviously partisan the system is, the less prestige it will have, at least with the legitimately aggrieved. 

Judge Roberts has expressed concern about the declining sense of legitimacy surrounding the Supreme Court, although he has been notably more critical of Republican criticism than of Democratic efforts to delegitimize the court and push to pack it. By temperament, he is unlikely to appreciate Trump or his style, being more a Bush-style Republican than a MAGA-type. 

But he seems blind to the danger from the left, and this change in ethical standards will only make it worse and, not coincidentally, make conservatives trust the courts' legitimacy even less. These ethics changes will enhance the contradictions and hostility of both sides, as liberals get more frustrated when they lose cases on appeal at the Supreme Court, and conservatives more hostile as even more liberal judges spout hateful nonsense in their opinions. 

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.

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.”

Roberts is, understandably, an institutionalist and prefers incrementalism as a rule. While that can lead to ridiculous decisions, such as calling Obamacare fines a "tax," the overall effect is more good than bad. Courts shouldn't make wild swings. 

But his institutionalism makes him temperamentally suspicious of Trump, who is a wrecking ball, and I suspect he is not unhappy to have judges below him take swings at Trump, even if his Court will overrule the actual decisions. It's possible that in many cases, Roberts agrees with the liberals on the policies themselves, but is disciplined enough to also know that the Constitution does not forbid Trump from doing things that Roberts dislikes. 

Conservative judges are often like that. 

Roberts hates that Trump will take swings at judges he dislikes and has implied as much. Perhaps he thinks that turnabout is fair play. 

Except...judges are not supposed to be politicians. Their legitimacy depends on people believing that they are not. Roberts knows this, but for some reason is unleashing lower court judges to become them.