Bench Memos

Re: Judge Wilkinson’s Unethical Op-Ed

Some observations following up on my post yesterday:

1. A reader asks about the last sentence (and, in particular, about the last phrase) of Canon 3(A)(6), which 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.” As I was drafting my initial post, I had thought about quoting this sentence and briefly pointing out that it wasn’t applicable. But the point struck me as so obvious that I decided it was unnecessary. I simply don’t see how an op-ed in a general-circulation newspaper could plausibly be thought to qualify as a “scholarly presentation[] made for purposes of legal education.”

2. For what it’s worth, I have considerable admiration for Judge Wilkinson, and I agree with him that principles of judicial restraint ought to govern judicial interpretation of the Constitution. But judicial restraint ought also to counsel judges against writing op-eds expressing their views on pending cases (even if there were no ethics rule directly on point). Among other things, it’s entirely predictable that partisans will use Wilkinson’s op-ed for their own purposes. Further, as a result of his public comments, Wilkinson may well have to recuse himself from taking part in any case involving the matters he has opined on.

3. It’s striking that the New York Times editorial page, which has so often misfired in making ethics charges against conservative justices, would publish Wilkinson’s piece. To be clear, I’m not faulting NYT  for Wilkinson’s violation of the Code of Conduct—that’s entirely his own responsibility—but I’ll be interested to see whether the editorial board ignores Wilkinson’s violation when it next thunders against its preferred targets.


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