Judges aren’t politicians and shouldn’t behave like them. When they do, questions about their impartiality naturally arise. Consider two troubling recent cases where other judges unfairly echoed political attacks impugning the integrity of sitting Supreme Court justices. One case involved attacks on Justice Clarence Thomas, and the other involved attacks on Justice Samuel Alito.
The most recent incident occurred last month in Texas, when former Court of Appeals Justice Sarah Beth Landau, who at the time served as an active judge, posted on X a misleading article by the New Republic that implied Thomas engaged in unethical conduct.
In her own commentary appended to her post, she said, “This Supreme Court Justice is doing a disservice to the rest of the federal judiciary, who are bound by, and in my experience abide by, a code of ethics. Everyone looks bad when those at the top do this and refuse to do better. The bar is too low.”
Yet the December 2023 article she shared simply regurgitated innuendo from a ProPublica hit piece on Thomas published around that same time. Pro Publica has a less-than-stellar track record (to put it mildly) in reporting on Thomas and other conservative Supreme Court justices. As attorney Mark Paoletta and others have pointed out, these reports are full of innuendo suggesting some type of wrongdoing where none exists.
As commentator Ramesh Ponnuru said about this piece in particular, ProPublica “crossed the line from hype to misleading the public.”
What does it say that a sitting judge approvingly posted an article relying on such a misleading (not to mention controversial) piece?
More troubling is Landau’s own misleading statement, in which she insinuates, if not outright states, both that Supreme Court justices are not bound by a code of ethics (they are) and that Thomas has violated that code (he hasn’t).
In fact, as my Heritage Foundation colleague Tom Jipping explained, the justices have, for many years, voluntarily followed the same ethics code that every other federal judge follows. Moreover, in November 2023 (a month before the New Republic published the article Landau posted and over a year before she reposted it), the justices adopted their own ethics code and pledged to follow it.
Landau even responded to one critical commenter by saying Thomas acted unethically and made “it look like our judiciary is for sale.”
These statements are even more egregious than the statements made in the Alito case. In May 2024, District Judge Michael Ponsor had to apologize for what he said in a New York Times op-ed attacking Alito.
In that case, a group filed an ethics complaint against Ponsor. Chief Judge Albert Diaz, who reviewed it, agreed that Ponsor had, in fact, violated the Code of Conduct for United States Judges.
Specifically, Diaz found that Ponsor’s statements diminished the public’s confidence in the integrity and independence of the judiciary, could reasonably be viewed by the public as commentary on partisan matters, and could be viewed as a call for specific justices to recuse in specific cases. While the Texas Code of Judicial Conduct isn’t identical to the Code of Conduct for United States Judges, both have similar provisions.
Landau tried to defend her online comments as mere commentary on matters of judicial administration, which judges are generally allowed to make. However, just like Ponsor’s comments didn’t qualify as commentary on matters of judicial administration, neither did Landau’s.
Notably, after public backlash, Landau deleted her original post, though she left her subsequent defense of it posted.
While she’s no longer a sitting judge after losing her bid for reelection, she was a sitting judge still actively hearing matters when she made her misleading and controversial statements. At least Ponsor had the decency to apologize for his inappropriate comments when others called him out. Landau, in contrast, responded to comments by insulting those who pointed out the inappropriate nature of her post.
We rightly expect our judges to speak primarily through their judicial opinions. That’s not to say that judges can never speak outside of their opinions and comment on matters of law and judicial administration. In fact, many do — speaking at bar conferences or local civic organizations or even penning law reviews or letters putting forth their views.
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The advent of social media has provided judges with a new (yet sometimes perilous) manner of engaging with the public. However, in making these extra-judicial statements, judges remain bound by their codes of conduct, the ethical rules governing their behavior.
Thomas, Alito, and others might expect left-leaning politicians to hurl allegations and innuendo of misconduct at them, though it’s still inappropriate. However, they should expect better from their fellow jurists, and we, the American people, certainly should expect better from them too.
Zack Smith is a senior legal fellow in the Heritage Foundation’s Meese Center for Legal and Judicial Studies.
This article was originally published at www.washingtonexaminer.com
