Before the Supreme Court adopted its Code, several of its justices had been involved in high-profile ethical controversies, almost all of them involving off-the-bench activities. The debate about whether and to what extent a given justice had done anything inappropriate quickly was overtaken by partisanship, with the sharpest criticism coming from people who disagreed with the justices’ rulings in highly consequential cases and the strongest defense being asserted by people on the other side of the political divide. Because the Court lacked any visible ethical guideposts—having said only that the justices consulted a variety of mostly unidentified sources in assessing ethical questions—there was little if any thoughtful engagement between these two factions about what the justices should have done and what would have been most in keeping with the values of the Court and the judiciary generally. It would be naive to think that the simple act of adopting a code of conduct would cause an immediate and significant shift in the internal and external dynamics that have led to the undeniable and concerning decline in the Court’s reputation—indeed, the recent controversy about flags outside the homes of one of the justices suggests that those dynamics, at least for now, are relatively unchanged. Whether that decline is more attributable to the Court’s rulings than to perceptions about the ethical probity of its justices is likely impossible to measure definitively, though I suspect that there is a synergy between the two. The Court has yet to articulate a mechanism that would enable the justices to receive independent guidance about how to meet their newly stated obligations, though significantly, it did indicate in the commentary to its new Code that it would be looking further at this question. But the importance of the Court’s recognition that specific ethical standards should be clearly and publicly acknowledged should not be underestimated—it is a clear affirmation that both rules and values matter.
We know from decades of experience with lower courts, both state and federal, that committing explicitly and transparently not just to ethical limitations but also to aspirational goals relates directly and positively to public trust and confidence. Some questions are easy: Judges shouldn’t take bribes, they shouldn’t hear cases involving family and friends, they shouldn’t hold people in contempt without due process, and so on. But many of the challenges judges face involve questions as to what appropriately should be expected of them: avoiding the appearance of impropriety; recusing from cases in which the need for recusal isn’t obvious but in which one’s impartiality reasonably might be questioned; being a good listener and maintaining a receptive and respectful demeanor; being curious and developing awareness about cultural differences; treating court staff appropriately; and being diligent in making decisions and getting work done, to name just a few. Codes of conduct don’t address these challenges in granular detail, but they do offer important points of reference.
One of the most vexing questions in the recent debate about the Supreme Court’s ethical standards involved how to define the appearance of impropriety. The Commentary to Canon 2A of the Code of Conduct for United States Judges observes that “[a]n appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” Yet, it was clear with respect to each of the controversies that preceded the Court’s adoption of its new Code that identifying “reasonable minds” was exceedingly difficult and that most conclusions as to whether a particular justice’s “honesty, integrity, impartiality, temperament, or fitness to serve as a judge” was impaired were likely to be heavily influenced by one’s political viewpoint and other forms of motivated reasoning. The flag controversy to which I referred earlier evidenced the same challenge.
It makes a difference that the Court’s new Code recognizes the importance of this value explicitly. It was not unusual during the debates about justices’ behavior to hear that “no law was broken” or that the justice “complied with the applicable rules at the time.” As the Commentary to Canon 2A notes, “[b]ecause it is not practicable to list all prohibited acts, the prohibition [against the appearance of impropriety] is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code.” I also believe strongly that because it often is difficult for people—even extraordinarily talented ones like Supreme Court justices—to see their own conduct as it is seen by others, the Court needs to take the additional step of creating a reference mechanism that would permit the justices to obtain seasoned and independent advice in this area. Regardless of a justice’s intentions, and regardless of whether a justice in fact has been influenced inappropriately, conduct that raises questions about undue influence should be scrutinized with particular care.
The question of when a justice should recuse from a case is closely related. Although the Court adopted the general rule that “[a justice] shall disqualify himself or herself in a proceeding in which the [justice’s] impartiality might reasonably be questioned,” determining whether such a question is reasonable typically is difficult. And while all other federal courts have a means for replacing a recused judicial officer, the Supreme Court has no such procedure—if a justice is recused, fewer members of the Court hear the case, and the dynamics of the decision-making process are altered significantly. Perhaps for that reason, the Court’s Code of Conduct devotes substantial attention to this subject, as does the majority of the accompanying commentary. Distilled to their essence, these provisions explain that there necessarily will be situations in which judges of lower courts would recuse but in which justices of the Supreme Court would not.
The Court’s transparency about its thinking is helpful, as it provides insight into decisions that often are the subject of speculation or controversy. At the same time, its determination to give itself more leeway concerning recusals, particularly given how consequential its rulings can be, underscores the need for an independent reference mechanism that provides individual justices with a way to check their judgment. Public confidence also might be improved if justices make an effort to explain their more significant recusal decisions, as the late Justice Antonin Scalia did in the case he decided to hear involving former Vice President Dick Cheney and as Justices Elena Kagan and Ketanji Brown Jackson have been doing more recently in a more abbreviated form. These observations flow from the “why” rather than the “what” end of the ethics continuum.
Thinking about the aspirational goals of ethical rules isn’t important only with respect to the Supreme Court. For example, Canon 3(A)(3) of the Code of Conduct for United States Judges states that “[a] judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.” In the nearly 40 years that I’ve been involved with judicial ethics issues, by far the most frequent controversies concerning lower court judges have involved demeanor. More judges are disciplined as a result of inappropriate demeanor than for any other reason. Appearing in court is difficult for most people, and they want to be treated respectfully by the judges who hear their cases. At times, whether someone is treated with respect matters even more to them than the outcome of their case.
However, the judiciary’s institutional role with respect to demeanor shouldn’t be limited to formal discipline. While the public rightfully should expect the judicial institution to protect it from judges who repeatedly mistreat people, the judiciary also honors its core values by providing proactive assistance to judges in managing the on-the-job challenges they face. Educational programs about active listening skills, emotion regulation, and managing chronic stress; the creation of peer support groups; and the recent growth of judicial mentoring programs and similar forms of assistance all reflect the judiciary’s commitment to doing its best to meet these expectations.
Canon 3 of the Code of Conduct for United States Judges makes the unsurprising statement that “[a] judge should not engage in behavior that is harassing, abusive, prejudiced, or biased.” Virtually every judge I’ve known not only would agree with that statement but also would say that he or she has tried to be faithful to that principle. Yet, making the aspirational value of the Canon a reality remains a work in progress. The records of judicial disciplinary proceedings document unfortunate instances in which the principle was violated, and less obvious behavior that typically doesn’t rise to the level of actionable misconduct is not infrequent, even if much of it is inadvertent. Public polls about the courts going back several decades report differential experiences and levels of trust and confidence across race, gender, and other demographic factors.
Teaching judges about the identification and mitigation of bias was one of my most difficult challenges as a judicial educator. Thinking of oneself as fair is one of the keystones of a judge’s self-image. While pedagogical methods that accuse people of bias rarely are received well by any audience, they’re particularly ineffective with judges. One has to start by assuming good faith and good intentions, engage in dialogue by listening deeply and carefully to what’s being said, and, to the extent possible, provide nonthreatening examples of how all people can make inaccurate assumptions about others based on the limitations of their own experience. The fact that effective engagement in this area is hard doesn’t mean that it isn’t also necessary. A judiciary committed to fairness as a basic ethical principle can’t be laissez-faire in the practical ways in which it pursues that commitment. Encouraging curiosity and inclusiveness is part of the job.
In 2017, the federal judiciary was shaken by a scandal involving a well-known circuit judge who was credibly accused of sexual harassment. Apart from the prominence of the judge, the situation attracted national attention because of the significant number of court staff—mostly female law clerks—who said that similar things had happened to them and that the courts had taken no action because of a culture of deference among judges. The chief justice created a working group to investigate and address systemic issues, and throughout that process and others many more allegations of workplace misconduct surfaced.
As with bias, the problem was not the absence of rules. Canon 3(B)(4) of the Code of Conduct for United States Judges states that “[a] judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff. A judge should not engage in any form of harassment of court personnel. A judge should not retaliate against those who report misconduct. A judge should hold court personnel under the judge’s direction to similar standards.” And Canon 3(B)(6) requires a judge to “take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code, that a judicial employee’s conduct contravened the Code of Conduct for Judicial Employees, or that a lawyer violated applicable rules of professional conduct.”
The problem was the lack of a proactive focus on the principles underlying the rules. Judicial workplaces are by their nature hierarchical, and power dynamics affect all of the relationships within them. For the most part, judicial culture is one in which judges are discouraged from interfering with or commenting on the way their colleagues manage their chambers. The notion of staff as a “court family” easily can obscure the reality that a judicial chambers is, nonetheless, a workplace. Even after the situation involving the circuit judge came to light and there was compelling evidence that the judge’s conduct was an “open secret,” at least among some of his colleagues, there still was resistance on the part of some judges—who expressed the fear that their daily routine would be micromanaged—to remedial initiatives. Here, too, as with bias, the fact that achieving the Code’s aspirational goal of safe and respectful workplaces will involve hard work cannot be a reason for abandoning the effort.
One of my responsibilities as director of the Federal Judicial Center was to meet regularly with the chief judges of the circuit courts. Among their many administrative duties, these judges ultimately were responsible for overseeing discipline and disability issues in their respective jurisdictions. They said that the most challenging situations they faced involved colleagues who were suffering or who appeared to be suffering from cognitive impairment. Yet again, there was no ambiguity in the rules: The “black letter” of Canon 3 requires judges to do their work diligently; Canon 3(A)(5) provides that judges shall “dispose promptly of the business of the court”; and Canon 3(B)(5) requires “a judge with supervisory authority over other judges [to] take reasonable measures to ensure that they perform their duties timely and effectively.”
However, in part because of the federal judiciary’s decentralized governance and perhaps in part because of the cultural expectation that judges would be deferential to each other, there were no standard protocols or best practices in place. Each circuit and each chief circuit judge had their own approach. Depending on circumstances and personalities, the resolution of the situation could go smoothly, linger unaddressed, or erupt into controversy. In the latter case—as has occurred recently with a long-serving and widely respected judge on the Federal Circuit Court of Appeals—the human impact can be very unfortunate. In my view, the “reasonable measures” called out in the language of the Canons must include a nuanced approach—both procedurally and substantively—developed jointly by the judiciary and medical experts.
There is a common thread in each of the judiciary’s ethical challenges that I have detailed here. If our goal is to inspire public trust and confidence, we have to do more than adopt rules. Where we have rules, we have to do more than simply avoid violating them. Instead, we have to remember why we have the rules and think about how to realize the aspirations behind them as fully as possible. The Supreme Court’s Code of Conduct was a much-needed statement of the Court’s aspirational goals. Although the Court has a singular role in our system, its reputation often affects the way the public looks at every other court. I look forward to seeing the Court’s next steps, which I hope will include an independent reference panel. I also hope that in each of the other areas I have described, the judiciary will be inspired to do more. While the ethical issues they face aren’t trivial, our courts still offer so much to our society. Uniquely among the branches of government, they are evidence-based, committed to due process, and, as most appropriate here, accountable to high ethical standards. They deserve our best selves and our best efforts.