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Op-Ed

Regulating Supreme Court Justices’ Ethics—”Cures Worse Than the Disease?”

Russell Wheeler

Recent proposals, although varying in particulars, would apply the United States Judicial Conference’s Code of Conduct for United States Judges to members of the Supreme Court and establish a new appellate route to consider justices’ refusals to disqualify themselves (recuse) when parties request it. The immediate motivation are accusations that Justices Scalia and Thomas are too close to conservative groups interested in Supreme Court cases on which both sit; the proposals build on persistent grumblings about justices’ declining to give reasons for why they don’t recuse (and why they do).

A New York Times editorial on “The Court’s Recusal Problem” and a Washington Post op-ed’s call for “An Ethics Code for the High Court” followed a March 1 House bill, the “Supreme Court Transparency and Disclosure Act,” which picked up on a letter that over 100 law professors sent to the House and Senate Judiciary Committees.

Whatever the merits of the accusations—about which I express no opinion here—the proposals rest on basic factual misunderstandings about federal judicial ethics regulation, could create a “cure-worse-than-the-disease” situation, and are probably unconstitutional in part.

The proposals assume, as the professors’ letter states, that, except for Supreme Court justices, “all other federal judges are required to abide by the Code of Conduct and are subject to investigation and sanctions for failure to do so.” Justices, the letter goes on, “look to the Code for mere ‘guidance.’” The letter doesn’t name the “investigation and sanctions” to which it alludes but no doubt that’s a reference to complaints filed pursuant to the Judicial Conduct and Disability Act of 1980, as amended. Thus, the bill directs the Judicial Conference of the United States to “establish procedures, modeled after [procedures laid out in the Act], under which … complaints alleging that a justice . . . has violated the Code of Conduct may be filed with or identified by the Conference,” which is to review them and take “further action, where appropriate.”


Judicial Conduct Complaints

Let’s stop here. It’s true that the Code applies, by its own terms, only to judges of the lower federal courts. But there’s little basis for the claim that those judges “are required to abide by” it. The Code itself says that it is (merely) “designed to provide guidance to judges.” And the Judicial Conduct Act does not elevate the Code to anything stronger, because the Act does not, contrary to the letter, “subject [judges] to investigation and sanctions for failure to” abide by the Code. In fact, the Judicial Conference’s rules that implement the Act explicitly reject the position that a Code violation is, per se, a ground for finding misconduct. The accompanying commentary explains: while “the Code  . . . may be informative, its main precepts are highly general; the Code is in many potential applications aspirational rather than a set of disciplinary rules.” The Code itself says only that it “may provide standards of conduct for application” in proceedings under the Act.

Instead, the grounds for a judicial discipline complaint under the Act are facts alleging “conduct prejudicial to the effective and expeditious administration of the business of the courts.” The Act authorizes any person to file a complaint about a federal judge with the appropriate chief circuit judge and authorizes the respective circuit judicial council to impose sanctions. (They rarely do, because almost all complaints are groundless and thus dismissed.) The important point, though, as the commentary to the Judicial Conference’s rules says, “what constitutes misconduct under the statute is the province of the judicial council of the circuit, subject to such review and limitations as are ordained by the statute and by these Rules.”

So, what are federal judges “required” to do? All federal judges—and justices—are required to obey conduct-regulating statutes, such as those mandating disqualification in certain circumstances and those requiring annual financial disclosure reports. Beyond that, federal judges are required not to engage in conduct that could produce a valid misconduct complaint. The Act does not reach members of the Supreme Court, most likely because, given that it’s the Supreme Court, there is no body comparable to a judicial council to consider plausible complaints.

The Code’s major contribution to judicial ethics is not to provide bases for judicial conduct complaints but rather stating general propositions that the Judicial Conference Codes of Conduct Committee applies to specific fact situations in confidential advisory—repeat, advisory—opinions when requested by judges who want the Code’s guidance, as almost all do.

The Court might create its own advisory mechanism, but that’s a far cry from authorizing a group of lower court judges to receive complaints about the justices, impose sanctions on them, and in so doing, develop a common law of Supreme Court misconduct rules. The practical effect, however, would not be sanctions but high rates of complaints by people disgruntled about the substance of the Court’s decisions and equally high rates of dismissals and correspondingly high rates of cynicism.


Recusals

What about failure to recuse from a case when a litigant requests it under the principal judicial disqualification statute? That statute, section 455 of title 28, directs a justice or judge to “disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned,” or under specific circumstances, such as stock ownership. Justices or judges sometimes recuse on their own, but a litigant may file a motion with the judge or justice requesting recusal. A denial of a recusal motion is a judicial act, subject to appeal, except as to Supreme Court justices. Given that it’s a “supreme” court, there’s no higher court to which litigants may appeal a justice’s decision. Creating one would take the judiciary into uncharted territory, creating a cure that could be worse than the occasional problems created by the status quo’s lack of transparency

And, let’s be clear: despite the terminology, the proposals would create such a court—and in so doing, probably run afoul of the Constitutional mandate that there be “one Supreme Court.” The bill tells the Judicial Conference to “establish a process” by which some group of justices or judges, in active service or otherwise, “shall decide whether the justice with respect to whom the [recusal] motion is made should be so disqualified.” Put differently, it would authorize an appeal of a supreme court justice’s judicial decision to what would most likely be a body of lower court judges.

And doing so as to recusal appeals creates its own set of problems. Given the absence of qualifying language, the bill would permit such appeals while the case is before the Court or even after it decided the case. That is how many disqualifications get litigated, because possible grounds for recusal emerge only later. If parties in a case before the Supreme Court became aware of grounds for recusal only after the Court rendered a decision, and if the court the bill proposes were in place, the parties could ask that court to reverse and remand the Court’s decision. That may sound good to opponents of Citizens United, but that’s not enough reason to authorize the potentially radical change the bill would create.

The bill is unlikely to pass, and if it did, it’s unlikely that lower court judges would ride roughshod over the justices in considering misconduct complaints or appeals from a denied recusal motion, which most Supreme Court litigants are reluctant to file anyway. But even if these two proposed bodies never did anything but ratify the challenged Supreme Court justices’ conduct and recusal motion denials, the damage to our judicial institutions would be done.

The Court might well benefit from more transparency from the justices when their actions come under responsible criticism, and the proposals’ provisions requiring justices to explain their decisions not to recuse when parties file disqualification motions seem entitled to further consideration. But some problems are better abided than subject to formal measures that create greater problems. Thomas Jefferson cautioned that “moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.”

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