Judicial Ethics and Discipline in the States

In recent years, news relating to judicial ethics has fixated on the U.S. Supreme Court, which announced last month that its justices will subject themselves to a code of conduct. In so doing, it became the last court in the country to adopt a code. It may be helpful to evaluate this development with reference to the broader context in which codes have been established, revised, and enforced across the country.

The history of judicial ethics

The regulation of judicial ethics in the United States began with Kennesaw Mountain Landis, a federal district judge with arguably the best name in the history of judging. Landis was a minor league ball player in his youth. Major league baseball hired Landis in 1921 as its first commissioner, hoping he could stabilize a sport rocked after the Chicago White Sox threw the 1919 world series. Landis took the job, but did not resign his judicial office. While the House Judiciary Committee disapproved of Landis’s conduct, it was divided as to whether moonlighting constituted an impeachable “crime.”

Landis ultimately resigned his judgeship, but the episode prompted the American Bar Association (ABA) to launch a commission chaired by then-U.S. Supreme Court Chief Justice William Howard Taft that published the Canons of Judicial Ethics in 1924, comprised of 34 guidelines for good judicial conduct.

In the years that followed, most state supreme courts adopted the Canons of Judicial Ethics for their respective judicial systems. But the preamble to the canons underscored that they were toothless by design: an unenforceable “guide and reminder for judges.” In 1960, California became the first state to establish a commission with authority to investigate judicial misconduct and impose discipline, and by 1980, all 50 states had followed suit.

Meanwhile, in 1972, the ABA reconvened to promulgate the first Code of Judicial Conduct. Relying on the old Canons of Judicial Ethics as a starting point, the 1972 code’s admonitions were phrased as “shoulds,” not “shalls,” but the preamble made clear that the code was intended to establish “mandatory” standards for emerging disciplinary agencies to enforce. In 1973, the Judicial Conference of the United States adopted the Code of Conduct for U.S. Judges, using the ABA’s 1972 code as a template. The code that the Judicial Conference adopted, however, applied only to judges in the lower federal courts, not to U.S. Supreme Court justices, because the conference lacked regulatory authority over the Supreme Court.

In 1990, the ABA overhauled the 1972 code, publishing a Model Code of Judicial Conduct that replaced the “shoulds” with “shalls.” And in 2007, the ABA remodeled the model code again into its current form (with modest tweaks in the years since).

In 2008, Montana became the last state to jettison the old canons of judicial ethics in favor of an ABA model. When the U.S. Supreme Court joined the fold last month, the net effect was that all judges in the federal and state judicial systems were subject to substantially similar codes of conduct.

Differences in the ways state systems regulate judicial conduct and ethics

Differences across jurisdictions remain, for at least three reasons. First, there are some differences between codes of conduct that are attributable to whichever ABA model a given jurisdiction adopted: the 1990 model code, for example, forbids judges from being featured speakers at fundraising events for law-related organizations, while the 2007 model code does not. Second, some ethical responsibilities, such as the duty to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” are phrased broadly enough to accommodate differing interpretations — interpretive differences that my coauthors and I describe and analyze in our treatise on judicial conduct and ethics, which we update biannually.

Third, and perhaps foremost, jurisdictions differ in the ways that they enforce their codes of conduct. Many jurisdictions classify code violations as a form of misconduct that will subject judges to discipline, but some do not. Some, but not most, states bifurcate the prosecutorial and adjudicatory functions of their conduct commissions. The high courts are the final arbiters of judicial misconduct across state systems, but some states provide special review procedures when the conduct of a supreme court justice is under investigation. In addition, disciplinary proceedings in all jurisdictions are confidential when initiated, but the stage at which confidentiality is lifted varies, which can contribute to a perception of underenforcement in jurisdictions with robust confidentiality restrictions. Finally, jurisdictions vary in the aggressiveness with which they police judicial misconduct and have been called to task for underenforcing ethical lapses.

There are ways outside of the disciplinary process for states to regulate judicial misconduct. Judges are, of course, subject to criminal prosecution. And state constitutions provide various ways for judges to be removed, including impeachment, legislative address to the governor, conviction of specified crimes, and recall elections. But these alternatives are cumbersome by design, so as to limit the frequency of external encroachment on the judiciary’s independence. Consequently, intra-judicial disciplinary processes, in which judges judge their own, are the primary means by which judicial misconduct is regulated.

The perils of judges judging judges

The chronic peril of judges judging judges is twofold. The first is that judges may seek to protect their own, or at least lack the courage to make hard choices involving colleagues. In addition to the garden variety underenforcement alluded to earlier, there is the occasional, eye-popping spectacle: In 2012, the Wisconsin Supreme Court dismissed a disciplinary matter for want of a quorum when its justices recused themselves en masse from a proceeding in which one justice allegedly placed a fellow justice in a chokehold. More recently, the Colorado chief justice allegedly sandbagged commission inquiries into purported misconduct within the judicial branch. And in an ethics-adjacent incident, the North Carolina Supreme Court declined to revise its disqualification procedures to authorize full court review of a fellow justice’s decision not to disqualify himself from an appeal in which his father was the named defendant.

The second peril of judges judging judges is that they may use the code and disciplinary process to thwart rivals and punish enemies. One persistent critique of the ways in which codes of conduct regulate candidate speech in judicial election campaigns is that they protect incumbent judges. Rules that prohibit judicial candidates from making campaign promises or engaging in a range of partisan, campaign-related activities may promote judicial impartiality, but for some critics do so at the expense of disadvantaging challengers in their efforts to unseat incumbents.

In addition, judges can weaponize the disciplinary process against each other. In North Carolina, for example, the judicial disciplinary body opened a misconduct investigation into a Black supreme court justice for expressing concern about the lack of diversity and the incidence of implicit racial bias in the judiciary, including her own court. The justice has filed a federal suit to block the disciplinary inquiry. And in the federal system, an elderly Federal Circuit judge was recently suspended for declining to cooperate in proceedings to evaluate whether she was disabled after the circuit chief judge refused her request to transfer the matter to a neutral circuit, prompting allegations that the investigation was infected by conflicts and personal animus.

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In short, all state judiciaries have adopted substantially similar codes of conduct. And all states have established procedures to investigate and discipline misconduct. Challenges associated with a self-regulating system of judicial ethics and discipline concern enforcement, as well as the problems posed by insufficient transparency, the impulse toward self-protection, and the disinclination to air dirty laundry. Essential to any reform effort is the need for state judicial systems to internalize more fully that rigorous investigation and remediation of judicial misconduct is indicative not of a system in trouble, but of a system in good repair, which serves to enhance, rather than diminish, public confidence in the courts.

Charles Gardner Geyh is a distinguished professor and John F. Kimberling Chair in Law at the Indiana University Maurer School of Law.