The Supreme Court’s Authority Is Not Optional, 12 Anonymous Judges Crossed An Ethical Line

It is a bedrock feature of the American judiciary that lower courts obey the Supreme Court. That is not mere etiquette, it is the structure of law. When a dozen sitting federal judges, even anonymously, tell a reporter that the Supreme Court mishandled cases involving the president, they do something the Code of Conduct forbids, they erode public confidence in judicial impartiality, and they invite questions about their own fitness to sit on any case that even touches those controversies. This is not about defending any one decision. It is about defending the constitutional architecture that keeps judges above the political fight.

Begin with the hierarchy. Stare decisis requires lower courts to follow the Court’s holdings and to respect its institutional role. A judge may disagree in chambers. A judge may write a careful opinion distinguishing precedent. What a judge may not do is enlist a national news outlet to air grievances about how the justices manage emergency applications or politically freighted disputes. That is not adjudication, it is commentary. Commentary from the bench carries special risks. Because it comes from an official actor, it blurs the line between impartial adjudication and advocacy. It tells parties and the public that some judges have already chosen sides in a running fight about the president and the Court. That invites forum shopping and contempt for judgments that should command compliance.

The ethical framework is straightforward. Canon 1 and Canon 2 of the Code of Conduct for United States Judges require judges to promote public confidence in the integrity and impartiality of the judiciary and to avoid both impropriety and the appearance of impropriety. Canon 3A(6) prohibits public comment on the merits of pending or impending matters, and it warns against statements that would reasonably be expected to affect the outcome or impair the fairness of a matter. These rules exist for reasons anyone can understand. Courts cannot function if litigants suspect that judges are performing politics rather than law. Even if no rule expressly mentioned the Supreme Court, common sense applies. When a district or circuit judge publicly criticizes the Court’s handling of a category of cases that are still arising, the resulting appearance is plain. The judge looks like a participant in a political campaign about the president, not a neutral arbiter of concrete disputes.

We do not need hypotheticals to see the problem. Recent discipline underscores that federal judges cannot safely use op-ed pages or media platforms to second guess Supreme Court justices. In 2024, a federal judge was found to have violated ethics rules by publishing an essay in a national newspaper attacking a sitting justice’s purported ethical lapse. The judicial council concluded that the public commentary diminished confidence in the judiciary and carried political undertones. The judge apologized and promised to seek guidance before future public writing. That episode involved a named judge and a single justice. The NBC interviews involve a dozen unnamed judges, broad criticism of the Court’s handling of matters linked to the president, and a direct challenge to the Court’s institutional choices. If the single-judge op-ed warranted discipline, the anonymous group interview is, if anything, more corrosive. It points a finger at the Court while hiding the hands that point.

Some will reply that anonymity softens the blow. It does not. Anonymity strips away accountability while preserving the harm. The public cannot assess the speakers’ records, their party of appointment, the cases on their dockets, or their potential conflicts. Parties cannot decide whether to move for recusal. The harm spreads by innuendo. Because no one knows who spoke, suspicion falls more broadly. That makes the appearance problem worse, not better. An ethics regime that focuses on appearances must condemn a tactic that maximizes suspicion while minimizing accountability.

What remedies follow. The first is recusal. Federal law states that any judge must disqualify himself or herself from any proceeding in which impartiality might reasonably be questioned. That test uses a reasonable observer, not the judge’s self assessment. After publicly criticizing the Supreme Court’s handling of the President’s cases, a reasonable observer could doubt these judges’ neutrality in any litigation involving the President or legal issues that formed the core of their criticism, including emergency relief, stays, nationwide injunctions, or structural separation of powers disputes. The clean rule is simple. Recuse from Trump related matters for the remainder of his term. This is not punishment. It is prophylaxis. It protects litigants and protects the courts from later motions to vacate under the same recusal statute if an appellate court decides that the appearance of bias infected a proceeding.

The second is notice. The reporters who brokered these interviews occupy a position of public trust. They should warn the judges that, absent timely recusals in Trump related matters, the public interest in transparency outweighs any confidentiality promise. The public has a right to know which judges have taken sides in a political controversy that overlaps with their docket. Reporters often grant anonymity to acquire information. They also retain discretion to publish names when withholding them would shield misconduct that threatens the public. A judge who will not step aside after making public, on the record, criticism of the Supreme Court’s handling of the President’s cases, risks tainting real litigations. Sunshine is the narrowest remedy that prevents broader harm. The choice should be given clearly and on a short fuse, recuse or be identified.

The third remedy is institutional discipline. Congress created a statutory process for misconduct complaints. The Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351 to 364, allows any person to file a complaint alleging conduct prejudicial to the effective and expeditious administration of the business of the courts. The Rules for Judicial Conduct and Judicial Disability Proceedings implement that process nationally and make plain that circuit judicial councils may investigate, make findings, and impose measures short of removal, including public censure and the requirement that a judge obtain ethics counseling. The Act exists for precisely this sort of crisis, noncriminal misconduct that nonetheless injures the federal courts. Public disparagement of the Supreme Court by sitting lower court judges, in the context of active controversies, fits that description. Judicial councils should use their tools.

Fourth, the Department of Justice should make a narrow inquiry. DOJ has no role in ordinary judicial discipline, and it must not attempt to control adjudication. But DOJ is the nation’s principal law enforcement agency. If the circumstances surrounding the interviews involved unlawful disclosure of confidential judicial conference deliberations, obstruction, false statements, or other federal crimes, DOJ has jurisdiction to investigate. A measured inquiry can answer a simple question, did the interviews cross from impropriety to illegality. If the answer is no, DOJ should say so and step back. If the answer is yes, prosecution decisions can be made on standard principles.

Fifth, Congress must be ready to do its part. Article III judges hold office during good behavior. When conduct falls below that standard, the Constitution provides one remedy. The House may impeach and the Senate may convict. Historical practice shows that Congress reserves impeachment for egregious misconduct, often involving criminality or pervasive dishonesty. That tradition is sound. It protects judicial independence and prevents tit for tat removals based on disagreements over rulings. At the same time, the standard has never been limited to statutory crimes. The House and Senate have treated sustained abuse of office and grave ethical breaches as impeachable. If an investigation identifies sitting judges who, after refusing recusal and flouting the Code, continue to inject themselves into a political campaign about the President and the Court, Congress should consider impeachment. A small number of principled removals can deter a larger number of lapses.

The argument for restraint is predictable. Judges are citizens with First Amendment rights. The Supreme Court itself now has a publicly posted Code of Conduct, and justices have defended their own right to speak. Why hold lower court judges to a stricter standard. The answer is institutional function. Lower court judges are not free agents on a collegial court of last resort. They are bound in a hierarchy and routinely handle live cases that rise or fall with what the Supreme Court orders on an emergency basis. Their public criticism targets the very tribunal that reviews them and often in matters that are still percolating. That puts them in a different posture. A justice can give a speech about the shadow docket without creating a reasonable fear that the justice is trying to influence a higher tribunal. A district judge who talks to a reporter about how the Court mishandles the President’s cases creates a foreseeable conflict in the very place where a recusal statute applies.

A second reply will note that the Court sometimes moves quickly and with short opinions in emergency settings. That is true. It is also true that emergency relief has grown more salient. But the remedy for concern is scholarship, not sound bites. Judges have privileged access to academic and internal channels. They can write law review essays that explain how doctrines could be improved. They can petition the Judicial Conference to study national injunctions, standards for stays, and the publication practice for emergency orders. They can teach. They can mentor. They can decide cases carefully, building records that let the Court explain itself more fully when review occurs. What they cannot do is use the press to deliver sharpened political messaging about a sitting President and the tribunal that reviews their decisions.

A third reply invokes safety. Threats against judges have increased. That is tragic and intolerable. It also cuts against speaking to the press in the first place. Anonymous complaints about the Court’s supposed favoritism in cases involving the President will be predictably weaponized by political actors. The speakers’ anonymity encourages wide suspicion about who is on which side. That is not a recipe for de escalation. The steady course is the course the Canons sketch. Do the work, speak through orders, and when speech is necessary, make it sober, scholarly, and detached from current dockets.

The recusal question deserves one more look because it is the clearest lever for restoring confidence quickly. The statute does not require proof of actual bias. It asks what a reasonable person would think. Would a reasonable person question the impartiality of a judge who privately expressed concerns about process to colleagues, then said nothing on the record, and continued deciding cases. Perhaps not. Would a reasonable person question the impartiality of a judge who told a national reporter that the Court treated the President’s cases improperly, all while similar cases were being filed every week. Of course. That is why the right answer is categorical. Recusal from Trump related matters for the duration of his term eliminates any reasonable doubt. It preserves the integrity of judgments. It tells the public that the judiciary knows how to police its own appearances.

Some will call this proposal harsh. It is not. It is simple, and it is bounded. It is also the best way to protect the very judges who spoke. If they do not step aside, litigants will force the issue with motions and appeals. If they do step aside, they can continue serving in a thousand other matters and return to the contested category later. A brief season of restraint in exchange for long term legitimacy is a bargain worth taking.

The larger point is philosophical. Institutions survive on self denial. Judges are given life tenure not to make them untouchable, but to make them untempted. The Code of Conduct puts the obligation in clear language. Avoid the appearance of impropriety. Promote public confidence. Do not comment on pending or impending matters. Nothing in that triad is ambiguous. The NBC interviews violated that ethic. The remedy is to repair the damage, not to excuse it. That repair requires recusal, a press willing to prefer transparency over concealment when concealment threatens live cases, an internal disciplinary process that takes appearances seriously, a Justice Department willing to ask whether any lines were crossed, and a Congress ready to act if lesser remedies fail.

If we mean what we say about the rule of law, we should say it clearly today. No more anonymous broadsides from the bench. No more winks at the Canons. No more shrugging at appearances. The Supreme Court is the apex of the judicial pyramid. There is room for debate about doctrine and process. There is no room for lower court judges to attack the Court in the press while they continue to sit on related cases. Recuse. Investigate. Discipline. And if necessary, impeach. That is not partisanship. That is constitutional maintenance.

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