Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.”* The official commentary to that canon further provides (emphasis added):
The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A.
Despite the fact that the case remains pending, Second Circuit judge Guido Calabresi, who wrote the opinion under review, has somehow seen fit to offer extensive public comments—in the form of an edited interview—about the case. Among other things, Calabresi seeks to defend his ruling (including by emphasizing the ideological diversity of the panel), says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”
Calabresi, a former Yale law school dean, has been on the Second Circuit since 1994. Surely he ought to be familiar with the basic provisions of the Code of Conduct by now. Yet what we have here is not an inadvertent remark, but an extensive interview, about a pending case.
* In the interest of completeness, I’ll note that Canon 3A(6) also states: “The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.” I don’t see any plausible argument that his interview falls within any of these exceptions.