When May Judges Speak?

A recent advisory opinion addresses when federal judges may speak publicly — and the limits that still define their role.

As public criticism of courts intensifies in the United States and globally, judges are increasingly confronting a difficult dilemma: When and how should they respond?

A recent advisory opinion from the U.S. Judicial Conference’s Committee on Codes of Conduct (Advisory Opinion No. 118) takes up that question. Grounded in existing ethical rules, it clarifies the scope and limits of federal judges’ public speech at a moment when courts are facing heightened scrutiny, political pressure, and even direct attacks.

“Courts around the world are facing similar issues, and can learn from each other,” said Kim Mueller, director of the Bolch Judicial Institute and retired federal trial judge. “This opinion clarifies that judicial silence may not always be the answer, but neither is unrestricted speech. It is for each judge to decide whether and how to give voice to the messages that support judicial independence and the rule of law. The challenge is to maintain public trust by modeling the judicial role while responding to threats against the rule of law and explaining why courts matter.”

The opinion addresses both the scope of permissible judicial speech and the ethical boundaries that continue to shape it. Key points include:

What judges may say. The opinion makes clear that judges are not required to remain silent in all circumstances. It affirms that judges may speak, write, teach, and engage in civic education on matters central to the legal system, including judicial independence, the rule of law, court administration, and the role of courts in a democratic society.

The opinion also confirms that “public statements about the need for judicial security and funding sufficient for the courts to carry out their responsibilities” are permissible.

Responding to attacks on the judiciary. Regarding criticism directed at the judiciary or individual judges, the guidance is cautious but meaningful. Judges may, in some circumstances, offer a “measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law.”

The opinion cites U.S. Supreme Court Chief Justice John G. Roberts Jr.’s 2024 Year End Report on the Federal Judiciary, in which he noted “four areas of illegitimate activity that . . . threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”

The limits of judicial speech. The opinion states that judges must avoid commenting on pending or impending cases, engaging in partisan political activity, or speaking in ways that could call their impartiality into question. These caveats, the committee notes, do not “lend themselves well to precise definitions,” but generally, judges should weigh the tone, context, and form of their remarks to determine appropriate boundaries. Judges should be particularly cautious when engaging with issues “further removed from the development of the law or the core functions of the judiciary.”

The opinion provides: “With respect to some particularly controversial topics, judges should be mindful that simply addressing certain topics might be viewed as taking a partisan position or reflecting a lack of impartiality.”

A narrow but important path. The opinion indicates that silence is not the default in all situations, but also does not encourage judges to provide extensive public commentary. When judges do speak, their role remains institutional rather than personal: disciplined, measured, and directed toward preserving the conditions necessary for impartial justice.

In both speech and writing, judges “should avoid sensationalism and comments that may result in confusion or misunderstanding of the judicial function or detract from the dignity of the office.”

Why this matters now. In addressing both the permissibility — and the limits — of judicial speech, the advisory opinion reflects a fluid environment in which courts are more frequently drawn into public and political debate and in which threats to judicial independence are becoming more visible.

For courts outside the United States facing similar challenges, the advisory opinion may serve as a useful reference point, reinforcing that judicial independence may, at times, require a public voice, but one that remains carefully bounded by ethics, restraint, and a commitment to maintaining public trust.

How Is Your Court Responding?

Does your court or judicial organization have a protocol or practice for responding to criticism, misinformation, threats, or attacks on judicial independence? We are collecting examples from courts worldwide for possible inclusion in a future edition.

Share your court’s approach using this form.

The Bolch Judicial Institute offers workshops and resources for judges on communicating with the public through media and civic education opportunities. Sign up here to receive updates from the Bolch Judicial Institute.