Last year, federal judge Michael Ponsor got in trouble for writing an op-ed that criticized Supreme Court Justice Sam Alito’s display of an upside-down American flag and an “Appeal to Heaven” flag, suggesting MAGA sympathies. A chief judge scolded Ponsor for violating ethics rules, Ponsor wrote an apology, and that was about it, but the kerfuffle reminded us that speaking out on politics can come at a cost for judges.
Last week, another federal judge, Mark Wolf, found a way around the Ponsor problem.
He quit.
Wolf wanted to speak out, too – especially against Donald Trump – and judicial ethics constrained him from a full-on warning about the president’s “existential threat to democracy.” The quitting, revealed in Wolf’s Atlantic magazine essay, drew broad and ecstatic praise – finally, a federal judge, a Ronald Reagan appointee no less, sticking it to Trump! – but here’s the thing.
Few federal judges were as effective as Wolf at holding the government’s feet to the fire, and other judges have done a pretty good job recently of blasting presidential transgressions, in opinions and in court. It makes you wonder: Don’t we want these people to stay on the bench?
It’s a truism that judging and opining publicly on politics – or, obviously, current cases – don’t mix. Faith in the courts would not survive otherwise. For federal judges, that principle animates several canons of the judicial Code of Conduct: Don’t rattle “public confidence in the integrity and impartiality of the judiciary,” avoid “the appearance of impropriety,” and don’t “advance…private interests.” But one canon encourages judges to “speak, write, lecture, and teach on both law-related and nonlegal subjects, ” so long as they don’t “compromise their impartiality.”
The rules leave plenty of leeway, but honorable judges surely have a good feel for what crosses the line. Ponsor’s biggest mistake was probably to needle one of his bosses – Alito – when critics were calling on said boss to recuse himself from cases then before the Supreme Court involving January 6 rioters. It suggested he was trying to skew the outcome. Earlier this year, Ponsor did write another op-ed, this one condemning physical threats against the judiciary, and no one seemed to mind.
We’re still learning what Mark Wolf has in store, though his Atlantic piece suggested he’s willing to go scorched earth on our president. In a nutshell: “The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out. Silence, for me, is now intolerable.” At the least, this sort of language from a sitting federal judge would provoke the likes of right-wing Congressman Jim Jordan and Senator Chuck Grassley to demand an ethics investigation, as they did in response to federal judges’ anonymous complaints to the New York Times about the Supreme Court.
What’s striking, though, is that Wolf spent the better part of four decades on the bench speaking out – often harshly – against government officials for their assault on the rule of law. Most famously, he held hearings that lasted almost a year on the FBI’s failure to tell federal prosecutors that Boston mobster James (Whitey) Bulger and murderer Stephen (the Rifleman) Flemmi were bureau informants. He laid out the facts in a scathing, 661-page opinion, and at Flemmi’s sentencing, said there was “a long pattern of the F.B.I.” ignoring the Constitution’s requirement that it be “candid with the courts” and prosecutors. His actions prompted a congressional investigation. In 2023, Wolf testified before the Senate Judiciary Committee about the Supreme Court’s mishandling of Justice Clarence Thomas’ failure to disclose extravagant gifts.
Plenty of other district court judges – Republican and Democratic appointees alike – have also found ways to give public officials a piece of their mind and condemn Trump’s threat to democracy. “An American president is not a king,” wrote Judge Beryl Howell in Washington, D.C. “It has become ever-more apparent that to our president, the rule of law is but an impediment to his policy goals,” said Seattle Judge John Coughenour. “That’s just not right in our country, is it, that we run our agencies with lies like that and stain somebody’s record for the rest of their life?” said Judge William Alsup in California about the illegal firing of a federal employee on baseless charges of misconduct.
These judges were speaking in written opinions or in open court – not in the Atlantic or on PBS or MSNBC. Their words carried weight. They were heard. And because they came from sitting judges, they and similar pronouncements had profound impact, in some cases blocking or at least stalling the summary deportation of a legal immigrant, the termination of someone’s hard-earned federal job, or the ripping of citizenship from an American-born father.
As Ponsor and others have demonstrated, judges can address controversial issues through the media, but it’s risky. That risk makes them anomalous among public officials. Governors and senators and representatives are generally allowed to shoot off their mouths about anything they choose. Administration functionaries are now expected to act as presidential attack dogs. Even Supreme Court justices are free to deliver provocative speeches and receive pricey gifts because, unlike lower court judges, they are not bound by meaningful rules of ethics.
So it’s understandable that Mark Wolf would choose to remove his muzzle. He’ll be 80 years old in a few days. He was on the bench for 40 years. As a senior judge in a district with relatively few trials, his job was probably no longer consuming. A flurry of interviews and stories suggests he has gained a national voice.
But media attention is fickle, notoriously difficult to hold. Will we continue to listen? Will judges trust him to speak for them? Will he make a difference? There was rarely any doubt that as a judge he could speak, be heard, and do justice. For that reason, Americans will miss him on the bench.