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Justice Scalia Talks Out of Turn

While Supreme Court justices are free to give wide-ranging interviews on their life and the law, commenting on cases that are before the court – or look to be headed that way – is a faux pas. Doing so is called “sub judice,” talking about a case that is still “under judgment,” and it’s banned in dozens of countries throughout the world.

In fact, the Code of Conduct for U.S. Judges states: “A judicial employee should avoid making public comment on the merits of a pending or impending action,” but the justices are exempt from following the code.

Some reporters even expect some of the more outspoken justices to cross the line from time to time and seem disappointed when they don’t. When Justice Antonin Scalia gave a talk at Colorado Christian University days before the start of this past term, the reporter covering the event wrote almost mournfully: “The justice made no reference to any of the pending cases before the Supreme Court.”

That may have been the exception, though. Scalia has hinted on how he’d rule in an NSA spying case (the D.C. Circuit and the Second Circuit are both hearing NSA cases with high court potential), and he seems unwilling to weigh the merits of any abortion cases that reaches his desk. “Nobody,” he said in 2012, “ever thought the Constitution prevented restrictions on abortion.” Also sub judice: his hinting last year that the court may soon take up same-sex marriage.

No matter: the justices are not bound by a code of conduct anyway.

Fix the Court is calling on Chief Justice Roberts and his colleagues to formally adopt the code of ethics – called the Code of Conduct for United States Judges – that all other federal judges are required to follow. Should they demur, we believe Congress has the authority to compel the justices to adopt the code.

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