Tonight Show
At the State of the Union address, will Trump or John Roberts blink first?
This could get awkward.
Tonight, shortly after 9 pm, President Donald Trump will strut to the dais in the U.S. House of Representatives and deliver the State of the Union address. Before him, among the senators and House members and cabinet secretaries and assorted guests, will sit the Chief Justice of the United States and at least some of his Supreme Court colleagues.
Oh, to read their minds.
They surely still stew over the scathing nonsense that was Trump’s response to their decision on Friday striking down the administration’s tariffs. The president called it a “terrible decision” and said he was “absolutely ashamed” of the six justices who joined it “for not having the courage to do what’s right for our country,” skewering them as “embarrassments to their families,” tools of foreign “slimeballs” and “very unpatriotic and disloyal to our Constitution.”
Will the justices scowl as he speaks tonight? Will they, like Samuel Alito sixteen years ago, mutter in protest after the president sends an inevitable zinger their way? Maybe, like a few Democrats last year, they’ll hold up little paddles saying “False!” or “You’re Out of Order!” We can only hope.
The better bet: They’ll gaze in black-robed dignity, content with the near certainty that Trump is in a panic over how they might stymie him next and, maybe more important, the knowledge that, for the first time in memory, their lower court colleagues have official permission to lead the PR fight on the judiciary’s behalf.
Earlier this month, the ethics committee of the Judicial Conference of the United States – the federal courts’ policy arm – gave trial and appeals court judges the go ahead to, in effect, stick it rhetorically to the noxious likes of Deputy Attorney General Todd Blanche, who declared “war” on “rogue activist judges;” his boss, Pam Bondi, who filed a baseless misconduct complaint against U.S. District Court Chief Judge James Boasberg; or Trump and the dozens of congressional sycophants who have demanded impeachment of jurists who rub them the wrong way. Judges – Democratic and Republican appointees – have done well issuing opinions that scold their critics for gratuitous jibes, but the moment calls for more: Defense of the rule of law in places and circumstances where everyone can hear it.
In an advisory opinion, the ethics committee addressed the “Ethics Considerations” for “Public Speech and Civic Engagement by Judges.” These sorts of missives typically come when someone subject to the codes of conduct for judges and judicial employees asks for advice – in this case, guidance on when judges can speak publicly.
A bunch of code sections bear on the question, and the general rule is, don’t shoot your mouth off on, say, politics or current cases. Faith in the courts would not survive otherwise. More specifically 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 rule encourages judges to “speak, write, lecture, and teach on both law-related and nonlegal subjects, ” so long as they don’t “compromise their impartiality.”
This allows judges a public voice off the bench, and some have taken full advantage. It’s not obvious from the opaque language, but read in the context of, say, Blanche’s war on judges, the new advisory opinion goes significantly farther. It says the codes “leave room, in at least some circumstances, for the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law, whether or not they rise to the level of persecution” of any particular judge.
As Professor Stephen Vladeck has pointed out, there’s plenty new in this and other parts of the opinion. First, it stresses over and again that the judges’ code supports “advocacy for the rule of law and judicial independence.” It says, in effect, yeah, we’re siding with judges who slammed you, Pam Bondi and Stephen Miller, for calling decisions that don’t go your boss’ way a “judicial insurrection” and worse. Second, the opinion counsels judges to “exercise caution when expressing their personal views to preserve the integrity of the judiciary and to promote public confidence in the courts.” That sounds like a constraint on judges, but it’s also a reminder that their criticisms carry extraordinary weight and deserve attention. Third, the opinion says it’s A-OK for judges to write opinions that accuse the administration of being “pernicious” and “cringe-worthy” or engaging in “gamesmanship or grandstanding” or issuing “blatantly unconstitutional” orders. Nothing wrong with a little color.
That the fifteen judges who sit on the ethics committee felt compelled to issue this opinion speaks volumes about the administration’s contempt for them and their colleagues and the rule of law. The Supreme Court justices are well aware of this contempt, and while Chief Justice John Roberts has protested in mealy mouthed response, justices like Sonia Sotomayor have to some degree given as good as they get. If anything, as a few lower-court judges have suggested, they have not gone far enough – especially when they are not even bound by formal rules of ethics.
Now, with trial and appeals court judges permitted a stronger public voice, the pressure is off a bit. The State of the Union starring Donald Trump may still be a spectacle, but the justices can sit back, relax, and enjoy the show.