That's the title of Ed Whelan's post at National Review Online, accusing Second Circut Judge Guido Calabresi of improperly speaking out about a pending case -- a case where Calabresi wrote the very opinion under review by the SCOTUS. (By coincidence, this weekend at the APRL conference I moderated a terrific panel (if I say so myself) on that very topic, with Charlie Geyh, Mark Harrison, Dana Remus, and the Hon. Stephen Reinhardt.)
Our readers may recall that Judge Calabresi was previously admonished by the Second Circuit for improper remarks at an ACS conference. Here's one of the passages in Calabresi's interview I would have counseled him not to say:
Now, I would not be surprised if the Supreme Court reversed us, for any number of reasons. And that would be too bad.
Here's an excerpt from Whelan's post:
The pending Supreme Court case of Town of Greece v. Galloway, which was argued in November, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.
Despite the fact that the case remains pending, Second Circuit judge Guido Calabresi, who wrote the opinion under review, has somehow seen fit to offer extensive public comments—in the form of an edited interview—about the case. Among other things, Calabresi seeks to defend his ruling (including by emphasizing the ideological diversity of the panel), says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”