The U.S. Supreme Court on Monday declined to intervene in the case of a former Pennsylvania judge suspended for posting partisan content on Facebook, leaving intact a disciplinary action that has reignited debate over the boundaries of judicial speech.
Mark Cohen, who served more than four decades in the Pennsylvania legislature before becoming a judge, was suspended in 2024 by the state's Judicial Conduct Board. The board cited dozens of posts praising Democrats, including former President Biden and Governor Josh Shapiro, as well as his advocacy for policies such as raising the minimum wage. Cohen also lost his pensions as part of the penalty.
In his petition to the high court, Cohen argued that his posts were expressions on matters of public concern, protected under the First Amendment. His attorneys at DLA Piper argued that lower courts applied an overly lenient standard, typically used for government employees, rather than recognizing judges as public officials speaking to constituents.
“This Court's guidance is sorely needed,” the petition stated. “If allowed to stand, the Cohen decision will have a chilling effect on judicial speech, invite political interference in the judicial branch, undermine the rule of law, and have the perverse effect of impugning the integrity of the judiciary.”
The Pennsylvania Supreme Court had upheld the suspension using a balancing test that weighs a government worker's free speech rights against the employer's interest in efficiency. Cohen's lawyers contended that judges are not ordinary employees, but rather elected officials whose speech is integral to democratic accountability.
In response, the Judicial Conduct Board, represented by Stanford Law School's Supreme Court Litigation Clinic, dismissed Cohen's posts as “partisan cheerleading” and argued that no precedent supports extending First Amendment protections to judges engaging in such activity. “There is no reason for this Court to review that straightforward application of familiar rules that judges around the country have followed for decades,” they wrote.
The Supreme Court's denial, issued without comment, means the suspension stands. The case had drawn attention from legal scholars and ethicists, particularly as social media use by judges becomes more common. The decision also comes amid broader scrutiny of judicial conduct, including other recent high court actions on related matters, such as efforts to remove judges in high-profile cases and disputes over political speech in school settings.
Legal experts note that the ruling leaves unresolved the question of how far judges can go in expressing political opinions, especially in an era of heightened polarization. Some argue that judges must maintain an appearance of impartiality, while others contend that overly broad restrictions could deter qualified individuals from seeking judicial office.
The case also highlights a growing tension between judicial ethics and digital expression. As courts grapple with these issues, the lack of Supreme Court guidance may lead to inconsistent standards across states. For now, Pennsylvania's decision stands as a cautionary tale for judges who engage in partisan activity online.
