Canon 3(A)(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.” (Emphasis added.) Yet Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has somehow seen fit to pen this New York Times op-ed in which he publicly comments on the merits of the pending Supreme Court challenge to Obamacare’s individual mandate and on the merits of the pending cases seeking the judicial imposition of a constitutional right to same-sex marriage. Among other things, he opines that striking down Obamacare’s individual mandate “would imbue judges with unprecedented powers” and that the arguments in favor of same-sex marriage are “political, not constitutional.”
Many people, myself included, will agree with one or the other (or even both) of Wilkinson’s assessments. But that agreement shouldn’t divert attention from the fact that, under the Code of Conduct, Wilkinson shouldn’t have publicly offered those assessments.