Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit recently gave an interview to Religion & Politics on the Establishment Clause. Among the subjects discussed was Town of Greece v. Galloway, a case currently pending before the Supreme Court, which presents the question whether opening town meetings with prayer violates the Establishment Clause. Judge Calabresi heard the case below, and authored the Second Circuit’s opinion concluding that the Town of Greece’s practice was unconstitutional.
In the interview, he defended his opinion, and remarked that he “would not be surprised if the Supreme Court reversed us, for any number of reasons. And that would be too bad.” The problem with these remarks is that the Code of Conduct for federal judges expressly forbids judges from commenting on pending cases. Specifically, Section 3(A)(6) provides:
A judge should not make public comment on the merits of a matter pending or impending in any court.
This is a broad restriction that clearly covers some of what Calabresi said, a point noted by legal commentators across the political spectrum. Judge Calabresi commented on the merits of the Galloway case, and it is still pending before the Supreme Court. Yet it’s not as if his statements are the sort with which the code is concerned. After all, Judge Calabresi made clear how he feels about the issues in this case when he wrote his opinion. Is there really any harm from him, essentially, reiterating this view?
Like John Steele, I would have counseled Judge Calabresi to avoid commenting on the case until it is fully resolved, but the offense in his remarks was relatively minor. I would not expect anything more than a reprimand, if that. Further, while judges are certainly constrained in what they may say publicly — and for noble reasons — becoming a judge does not mean that one sacrifices all of one’s First Amendment rights. (See, e.g., Republican Party of Minnesota v. White.)
Note also that this is not the first time Judge Guido Calabresi has gotten himself in trouble for ill-advised comments. As longtime readers may recall, Judge Calabresi was admonished by the Second Circuit for comments he made at an American Constitution Society convention comparing the initial election of President George W. Bush to the rise of Mussolini and Hitler. Eugene posted about these remarks here and here.