Regulating the Supreme Court Justices' Ethics: a Response to Russell Wheeler

March 25, 2011
Guest Post

By Amanda Frost, Professor of Law, Washington College of Law, American University.
More than 135 law professors have signed a letter advocating that Supreme Court justices be subject to the same ethical rules as lower federal court judges and that an individual justice's decision not to recuse him or herself from a case be reviewed by others. A bill recently introduced in the House of Representatives would establish such reforms.

Russell Wheeler of the Brookings Institute has criticized the letter and the bill on three grounds. Wheeler argues that these proposals: 1) "rest on basic factual misunderstandings about federal judicial ethics regulations"; 2) "are probably unconstitutional in part"; and 3) "could create a ‘cure-worse-than-the-disease' situation."

I am one of the signatories of the law professor letter, and thus have decided to respond to Russell Wheeler's critique. This response is solely on my own behalf, and I do not speak for either the other signers of the letter or for the sponsors of the pending bill.

(1) Neither the bill nor the letter contains factual misunderstandings about judicial ethics.

Wheeler acknowledges that both the Code of Conduct and the Judicial Conduct and Disability Act of 1980 apply only to lower federal court judges, and not Supreme Court Justices. That disparity is the principal complaint in the law professor letter, and would be rectified were the pending bill to become law. But Wheeler argues that the letter mistakenly assumes that lower court judges are required to abide by the Code of Conduct. He points out that although the Judicial Conduct and Disability Act of 1980 establishes procedures for investigating and sanctioning judges, violations of the Code of Conduct do not automatically lead to a finding of misconduct. From this, he concludes that lower federal court judges are not "required" to follow it.

Although Wheeler is correct that violations of the Code of Conduct are not automatically grounds for sanction, neither the letter nor the bill said otherwise. Both the letter and the bill did assume, correctly, that lower court judges are supposed to follow the Code of Conduct, and violations of the Code of Conduct are grounds for "investigation and sanctions" under the Act. As the Judicial Conference's rules implementing the Act state, the "Code of Conduct . . . covers . . . activities . . . [that] may constitute misconduct." The commentary to Canon 1 of the Code states: "whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable application of the [Code's] text" to the activity in question. In other words, if judges violate the Code of Conduct, that violation may form the basis for a finding of misconduct under the Act. For example, the implementing rules explicitly provide that: "allegations that a judge solicited funds for a charity or participated in a partisan political event" - both of which are prohibited by the Code of Conduct - "are cognizable under the Act." (emphasis added) Thus, both the letter and the bill are correct in assuming that lower court judges are obligated to follow the Code or risk "investigation and sanctions."

Moreover, Wheeler's quibble that lower federal court judges are not automatically sanctioned for Code violations misses the point. These judges are unlikely to knowingly violate the Code because they know that any violation of the Code could be grounds for a finding of misconduct under the Act. Supreme Court justices have no similar motivation to follow the Code of Conduct, because they know that it does not apply to them, and so even if they violate it they will never be subject to investigation and a misconduct finding under the Act. That is the very problem that the letter highlights, and the bill addresses.

(2) The bill is constitutional.

Wheeler also argues that the bill would "create" a court to review a single justice's decision not to recuse him or herself, leading to "an appeal of a supreme court justice's recusal decision to what would most likely be a body of lower court judges." He concludes that this result would "probably run afoul of the Constitutional mandate that there be ‘one Supreme Court.'"

This argument is ironic considering that the problem with the Supreme Court's current recusal process is that "one Supreme Court" does not make recusal decisions. Rather, one justice acting on his or her own makes the final decision -- the very justice who is claimed to have a disqualifying bias or interest. But in any case, Wheeler's constitutional critique is based on a misreading of the bill.

The bill gives the Judicial Conference discretion to decide which judges or justices (including retired Justices) could review a single justice's refusal to recuse him or herself. Thus, if the Judicial Conference agrees with Wheeler that it would be unconstitutional for a lower court judge or retired justice to review the question, it has an easy solution - it can assign review to all nine members of the current Supreme Court. Although there are good arguments that allowing lower court judges and retired justices to decide such an issue does not violate the constitutional requirement that there be "one Supreme Court," they are not worth making here, since the bill explicitly allows the Judicial Conference, at its discretion, to leave the recusal issue in the hands of the nine active justices if it thinks this is the best course.

3) Is the cure worse than the disease?

Wheeler worries that if the bill were to become law, it would "damage [] our judicial institutions." Yet Wheeler began his critique by citing editorials in The New York Times and The Washington Post on these issues, and by noting the recent accusations that some justices have violated the Code of Conduct that applies to all lower court judges (but not to the Supreme Court) -- all of which illustrates that the status quo is already doing "damage to our judicial institutions."

I agree with Wheeler, however, that it would be best if the cure were not imposed on an unwilling patient. The Supreme Court could make many of the proposed changes voluntarily, and I hope that it chooses to do so.