The constitutional system of checks and balances is reliant on the finality of a judge’s decision and is based on an independent and impartial evaluation of the facts and the law. Where the power of the government is voluntarily given from the people to its chosen leaders, the general public is owed a level of reassurance and confidence that the integrity of the judicial system is protected and enforced. This is a foundational principle, learned from centuries of experience, that the concepts of liberty and justice are inseparable from the existence of an independent judiciary.
As the public is informed about incidents of misconduct by members of the judiciary, public confidence wanes. While this is a government of human beings, which naturally results in mistakes, lapses in judgment, or other poor choices, the expectation that judges will exemplify appropriate behavior both on and off the bench is fragile. As that expectation erodes, so does their confidence in the integrity of the judiciary also diminish.
While the ABA has continually led the efforts in establishing hortatory guidance and, later, mandatory model codes of conduct for the judiciary, the initial impetus to draft these rules comes from incidents where the public trust in the judiciary was damaged. The evolution to the current Model Code of Judicial Conduct first began about 100 years ago in response to a scandal involving our nation’s iconic sport of baseball. Almost 40 years later, in 1964, Lewis Powell Jr., then president of the ABA and later associate justice of the Supreme Court of the United States, proposed to the ABA House of Delegates that lawyers and judges should establish new codes of conduct and be prepared to live and work according to the codes they framed. In 1984, the ABA Standing Committee on Ethics and Professional Responsibility conducted a survey that suggested a comprehensive evaluation of the current Code of Judicial Conduct was needed and desired. Then, in 2003, the ABA appointed a Joint Commission to Evaluate the Model Code of Judicial Conduct to review once again and recommend revisions to the current Model Code.
Canons of Judicial Ethics (1924)
In 1919, eight professional baseball players with the Chicago White Sox were accused of receiving bribes in exchange for intentionally losing that year’s World Series. The bribes were reportedly made by the organized crime boss Arnold Rothstein. As a result of the scandal and in an effort to protect its reputation and integrity, the National Baseball Commission was dissolved by Major League Baseball (MLB). Instead, MLB appointed a federal judge, Kenesaw Mountain Landis, as the first Commissioner of Baseball. While Judge Landis believed that he could still serve as a federal judge and the Commissioner of Baseball simultaneously, pressure was placed on him to pick. He chose to be the commissioner. In 1921, a trial was held, and the defendants were acquitted of all charges despite some players confessing to their involvement. Still, Landis banned all eight players from professional baseball, and those bans stand today even though several have applied for reinstatement.
The ABA formed the Committee on Judicial Ethics in response to the quandary posed by the appointment of Judge Landis and his initial attempt to keep both positions. The chair of the Committee was then-Chief Justice William Howard Taft. The chief justice provided a great deal of credibility to the effort to articulate the principles behind establishing guidelines for judges to consider when questions of appropriate conduct arise. The result of the Committee’s work was 36 provisions or Canons that were generalized, suggestive admonitions, and specific rules that govern the personal and professional practice for members of the judiciary in the administration of their duties. These Canons were intended to be a guide and reminder to judges—in effect, a resource to be consulted at times. As hortatory admonitions, the Canons were not intended to serve as the basis for enforcement or discipline consequences.
The Canons were later criticized for their inability to resolve difficult issues that began to arise. The Canons covered a wide range of issues, most notably the introduction of the principle that a judge’s official conduct should not only avoid any impropriety but also the appearance of impropriety. That principle was initially criticized as too vague; however, defenders of the concept argued that the language in the Canon fosters public confidence in the judiciary and augments judicial independence.
Working past the concerns, the Canons were adopted by the ABA at the 47th Annual Meeting on July 9, 1924. Even as recently as 2011, the Canons were still referenced as the source material for ethical consideration. In response to concerns about the willingness of associate Supreme Court justices to recuse themselves from matters where there is a prior professional or personal contact, Chief Justice John Roberts referred to the Canons of Judicial Ethics and, while acknowledging that the Canons were not binding, he affirmed that all the justices consult the Canons when assessing their ethical obligations.
Code of Judicial Conduct (1972)
On July 28, 1965, President Lyndon B. Johnson nominated to the Supreme Court his personal friend Abe Fortas, who was given a favorable recommendation from the Senate Judiciary Committee. Two weeks later, he was confirmed as an associate justice of the U.S. Supreme Court. Justice Fortas maintained his friendship with the president and continued advising him. In 1966, Fortas accepted a retainer agreement from a Wall Street financier, Louis Wolfson, in exchange for unspecified advice. Those arrangements were not uncommon as other Supreme Court justices had similar agreements. However, in order to avoid the appearance of impropriety, Justice Fortas returned the money that same year when it became apparent that Wolfson had a case that was headed to the Supreme Court. In 1968, President Johnson nominated Associate Justice Fortas as chief justice in anticipation of the retirement of the current Chief Justice Earl Warren. Fortas faced hostile questioning about his continued working relationship with the president while serving on the U.S. Supreme Court. After several senators filibustered the nomination over the acceptance of an honorarium for a series of university seminars, his nomination was withdrawn at his request. Soon afterward, the payment arrangement with Wolfson was disclosed, which created a large public controversy. Eventually, Fortas resigned from the Court.
The scandal prompted Chief Justice Warren to request that the Judicial Conference Committee on Court Administration evaluate steps needed to address the growing concerns about the federal judiciary. Simultaneously, the ABA was completing the work undertaken at the behest of then ABA President Powell. Having adopted the Code of Professional Responsibility for lawyers, the president of the ABA in 1969, Bernard G. Segal, established the Special Committee on Standards of Judicial Conduct to develop a new set of rules for the judiciary, stating that the time had come for the bar to reexamine the old Canons of Judicial Ethics and bring them up to date. The Special Committee was composed of 14 individuals from the bench and bar representing every part of the country. The Judicial Conference agreed to collaborate with the ABA’s Special Committee, chaired by Roger J. Traynor, chief justice of California.
The Special Committee focused on its mission for three years. In that time, they met 12 times, with each session lasting two days. They conducted several subcommittee meetings and performed fieldwork. “The Committee members recognized at the outset that judges live in an animal kingdom like everyone else. Hence, they decided on fieldwork for an up-to-date panorama of the native habitats of judges.” The mission of the Committee’s work was the importance of maintaining the independence and integrity of the judiciary. At the very first meeting, the members agreed on the principle that eventually became the first Canon of the new Code:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
In June 1970, the Committee issued an Interim Report. The Interim Report was an expression of consensus among the members of certain principles intended to elicit responses in the process of reaching a final draft. It was sent to approximately 14,000 people from the bench, the bar, and the general public. That distribution resulted in over 500 written replies. The Special Committee held three public hearings and considered each response that had been tendered. The Committee then issued a Tentative Draft, which also received approximately 500 replies from individuals as well as 27 committees from various bar associations or other groups from across the country. The Special Committee considered each response and adopted many suggestions as they refined the Tentative Draft. During the process, the Special Committee worked on 13 proposed drafts.
The result was the ABA’s first major overhaul of the original Canons of Judicial Ethics. The number of Canons was reduced from 36 to a manageable seven Canons. The hard work put in by the Committee resulted in the adoption of the Final Draft by a unanimous vote. The Code of Judicial Conduct was approved by the ABA House of Delegates on August 16, 1972.
Model Code of Judicial Conduct (1990)
In 1986, the ABA Standing Committee on Ethics and Professional Responsibility, which issues advisory opinions on legal professional ethics and judicial conduct, conducted a survey resulting in the recommendation that a comprehensive review of the Code of Judicial Conduct was needed. That Committee and its Judicial Code subcommittee conducted the review from 1987 to 1990. The membership was composed of current and former members of the Ethics Committee, along with several members of the judiciary. The three-year commitment was funded by the Josephson Institute for the Advancement of Ethics, the State Justice Institute, and the ABA.
The Committee reached out to the same set of stakeholder groups, including members of the judiciary, the bar, and the general public. The Committee observed that the 1972 Code of Judicial Conduct had become the basis for discipline. One aspect of the revised Code was to make the mandatory nature of the Code of Judicial Conduct clear. The Committee replaced the suggestive “should” language with the directive “shall” language to fortify the mandatory aspect of the Code with the intention that the revised Code would apply to state judges as well as federal judges whenever each individual state adopted the Code.
During the revision process, the number of Canons was reduced to five. The Committee added a Preamble to the Code and a Terminology section. At the end of the Code, after the Canons and Rules, an Application section and an appendix were included with the formal Code of Conduct document. On August 7, 1990, at the ABA Annual Meeting, the House of Delegates adopted the Model Code of Judicial Conduct.
Revised Model Code of Judicial Conduct (2007)
The ABA, through its evolving standing committees that have the authority to amend, review, and modify the relevant codes of professional responsibility, when appropriate, has continually maintained the Model Code of Judicial Conduct to ensure that it remains relevant to the times and applies the appropriate standards to the world as our culture shifts and changes. In September 2003, the Joyce Foundation and the ABA announced the creation of a Joint Commission to Evaluate the Model Code of Judicial Conduct. The Joyce Foundation is a charitable institution that supports policy research, development, and advocacy in six program areas: Culture, Democracy, Education & Economic Mobility, Environment, Gun Violence Prevention & Justice Reform, and Journalism. The newly established Joint Commission rested under two ABA standing committees, the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Judicial Independence. The membership of the new Joint Commission expanded from the old criteria to include not only members from the bench and bar but also experts in the field of judicial and legal ethics and one individual from the general public. The Joint Commission also was provided support staff by the ABA to aid in its mission, which included reporters, advisors, and legal counsel.
Once again, the cumulative nature of the comprehensive review and reform of the existing Code lasted over three years. In keeping with the foundational aspect of maintaining the credibility of the judiciary, the Joint Commission focused on the independence, integrity, and impartiality aspects of the Code. The work was enhanced with the collective experience of judges who had been guided by the 1990 Model Code for over 20 years. The evaluation included consideration of several new types of courts that had been implemented during that time frame, the increasing number of pro se litigants, and the variety of methods used to select judges in different jurisdictions. During the final stages of the revision, there had been a late attempt to diminish the relevance of the “appearance of impropriety” by reducing the standard as a suggestion and not a rule. That attempt failed, and the Joint Commission kept the standard as a rule at the urging of the Conference of Chief Judges.
On February 12, 2007, at the ABA Midyear Meeting, the ABA House of Delegates adopted the revised Model Code of Judicial Conduct. The revised Code reorganized the format of the Code by further reducing the number of Canons to four and then structuring the number of Rules with explanatory and aspirational Comments, intended to provide further hortatory guidance to clarify the Rules, and organized the structure by topic. The Commission believed that the four Canons were intended to articulate the broad principles that provide the philosophical backbone to the rules but were phrased too broadly to be independently enforceable through disciplinary action. Instead, the rules alone provide standards that are enforceable. The revised Model Code also included new sections that bolster the impact of the Code and help clarify its purpose and meaning. The reporters assigned to the Joint Commission have a 71-page document that details every change made to the 1990 Model Code and the 2007 Revised Model Code on the ABA website for their Center for Professional Responsibility. Although the number of changes were numerous when stated in detail, the central focus remained stable. Not only did the core concepts of impartiality, independence, and integrity remain, but the vital, supporting precepts regarding judicial demeanor, disqualification, and ex parte communications remained in place and virtually unchanged.
U.S. Supreme Court
The ABA Model Code of Judicial Conduct is just that—a model for use in drafting or amending a code of conduct by state and local governments. Most states adopted the 1972 Code virtually as drafted. Since then, a number of states have modified their codes based on the 1990 and 2007 revisions. The Code of Conduct for Federal Judges is the result of the work done by the ABA in 1972 and was proposed to the Judicial Conference of the United States by Chief Justice Warren Burger. It was adopted by the Judicial Conference in 1973 and has been revised eight times since then. This federal code applies to judges sitting on the U.S. Circuit Courts, U.S. District Courts, Court of International Trade, Court of Federal Claims, and Bankruptcy Courts and to all magistrate judges.
In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts clarified that the justices of the U.S. Supreme Court are not subject to the Code because, as a creature of the Judicial Conference of the United States, the Code applies only to “judges,” not justices. Article III, § 1 of the U.S. Constitution only creates the Supreme Court. That section then goes on to empower Congress to establish any other federal courts that Congress determines are needed, which Congress has since done over the life of the country. In establishing the lower federal courts, Congress also established the Judicial Conference of the United States for the benefit of those federal courts. While the chief justice chairs the Judicial Conference, the Supreme Court is not subject to the Judicial Conference because the authority of the Supreme Court rests in the Constitution. Since the Judicial Conference adopted the Code of Conduct, that Code only applies to the courts that operate under the auspices of the Judicial Conference, the lower federal courts. Therefore, Supreme Court justices are not required to observe the Code of Conduct as adopted and amended by the Judicial Conference nor the Model Code of Judicial Conduct as adopted and revised by the ABA. They serve as Supreme Court justices as long as they are willing and able and remain on good behavior. Chief Justice Roberts asserted, “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations.” He follows up by stressing that every justice on the high court seeks to abide by the high ethical standards set forth by the Judicial Conference and the 1924 Canons that Chief Justice Taft helped develop.
Press reports over the past few years prove that the effort to maintain those high ethical standards is more difficult than expected. News articles have shown that despite internal guidelines on reporting gifts that are valued at over $480, several Supreme Court justices have received gifts of varying types from individuals who have matters that are being considered by the Court. In response to pressure put on the Supreme Court, a new code of conduct was unanimously agreed to in November 2023. This code is the first ethics rules adopted by the Court but exists as a document of hortatory guidelines with no means of enforcement. Viewed more as a policy statement, the Code does not establish any new guidelines and relinquishes the obligation of compliance entirely up to each justice. Upon the public release of the code, the justices wrote that this was done in an attempt to dispel the erroneous notion that the justices are unrestricted by any ethics rules. The Code of Conduct for Justices of the Supreme Court of the United States, issued on November 13, 2023, is composed of five Canons. Most of those Canons have a series of subsections that provide more detail into the relevant principles that fall under the subject matter of the Canon. Following the Canons, there is a Commentary section that provides some history and explanation about the development and purpose of the new Code. The first sentence in the Commentary clarifies that this code is substantially derived from the Code of Conduct for U.S. Judges but modified to fit the unique setting of the U.S. Supreme Court. In the Commentary’s conclusion, the new Code quotes former Justice Tom C. Clark by stressing that judges “must bear the primary responsibility for requiring [appropriate] judicial behavior.”
Conclusion
Around the time the new Code of Conduct for Justices of the Supreme Court of the United States was adopted by the justices, the public trust in and approval of the court had hit a 50-year low, with only 18 percent of Americans expressing great confidence. The media, sometimes referred to as the Fourth Estate because of its relevance in informing the public of governmental activity, has a significant role in ensuring that the conduct of the judiciary maintains its integrity, although the consequences of press scandals bring a large amount of pain to the subjects. Significant scandals that spotlight the bad actions of a minority of the judiciary are traditionally the spark that led to the initial creation and later revisions to the judicial codes of conduct. In addition to that pressure, the ABA has been instrumental in working with foundations dedicated to judicial improvement to continue the work needed to regularly revise and modernize the Model Code on a consistent basis.
The history of the development of judicial ethics from the original Canons to the current Model Code and its ongoing review and revisions show a commitment to a responsive evolving ethical framework for all judges. When all is said and done, a judge’s compliance with the Canons detailed in the Model Code can only serve to protect the integrity and reinforce the public view of the judiciary so much. It provides an incomplete shield against intentional attacks against the judiciary. Not only does the impartial and independent nature of the judiciary suffer in the face of such attacks, but so does the physical safety of the judges, their families, and the staff who support their judges. In these times when demagogues, who are unwilling to accept the consequences of their actions, attack the judges who preside over their cases, the general public begins to lose confidence that the judiciary is a fair and impartial institution. The number of people who refuse to accept the authority of the courts or resort to violence increases because they have been led to believe that the courts are no longer legitimate. That erroneous, self-serving belief is further encouraged when members of the judiciary make choices that contradict the rules that have been put in place to not only regulate judicial behavior but also reinforce the integrity of the bench.
Ultimately, it’s up to each and every individual judge to maintain the integrity of the bench. Lapses of judgment coupled with excuses and diversions only serve to reinforce the public’s darkest fears. In the 2011 Year-End Report, Chief Justice Roberts wisely stresses, “But at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”