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November 12, 2021 Judicial Ethics Column

Political Activity Inconsistent with the Impartiality of the Judiciary

By Marla N. Greenstein

Judicial Canons of Ethics have consistently emphasized the threat that political speech and activity impose on the essential impartiality of the judiciary. There is a broad recognition that judicial authority rests in the public’s acceptance of well-reasoned impartial decision-making.

Canon 4 generally asserts this principle; 4.1(A)(12) sets the standard: “A judge shall not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” And while there is a longstanding acceptance of this standard, what it means in any given context is far from clear. In our current politicized climate, determining what “would reasonably be expected to affect the outcome” seems to defy definition. Judicial ethics committees and disciplinary bodies have routinely referred to the “reasonable” informed member of the public in assessing this standard. But what does the reasonable member of the public look like today?

Even the most informed and educated members of the public are viewing judicial statements through a political lens. Judges have been placed in a defensive stance, addressing the public’s general cynicism. When on Sunday, September 12, 2021, Justice Amy Comey Barrett stated in a speech, “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks,” it was met with a string of national editorials rebuking that assertion.

Judges themselves have sought guidance through advisory opinions in this current climate of uncertainty. A Virginia opinion advised that a judge’s desire to write a law review article analyzing a statute and asserting that the state’s supreme court has incorrectly interpreted the statute would violate the precepts of judicial ethics. Noting that the proper forum for a judge to assert an alternative statutory interpretation is in a written judicial opinion “in the context of an active case,” an article would create a reasonable appearance of partiality. Va. Jud. Ethics Advisory Op. 20-2 (approved March 12, 2021).

So too, the California Committee on Judicial Ethics Opinions advised that a judge’s membership on a hate crimes task force would be too broad to be appropriate for a judge’s role. Of particular concern is that the public would perceive the judge’s involvement as applying to all the task force’s goals, including those that were policy recommendations not limited to the role of the courts. CJEO Op. 2021-041 (Mar. 3, 2021).

Newer social and civil rights issues have complicated the analysis further. Most recently, the National Association of Women Judges was faced with a resolution from a group of members that sought to preclude the association from holding meetings in “states that have voided or repealed state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression or have enacted laws that authorize or mandate discrimination on the basis of sexual orientation, gender identity or gender expression.” Proposed Resolution (Apr. 2021). Whether the members of the association could participate in debate over the substance of the resolution or even participate in a vote on it became the subject of several formal and informal state judicial advisory opinions. See N.Y. Op. 21-81 (Apr. 29, 2021); Fla. Op. 2021-11 (Aug. 5, 2021); Informal Advice Letter to Judge White, Mass. Comm. on Jud. Ethics (Aug. 26, 2021).

While there are no bright lines or clear answers, the ongoing credibility of the courts rests on the public perception of the impartiality of its judges. The judiciary will increasingly be faced with controversial and essential legal issues concerning the rights of its diverse citizenry. By steadfastly touching back to the guidelines for maintaining impartiality as imperfectly set out in the ABA Code of Judicial Conduct, the judicial branch will continue to be the touchstone for integrity and the rule of law.

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By Marla N. Greenstein


Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].