Rules of judicial ethics address three aspects of judicial conduct. The first is a judge's conduct as a judge. The second is the circumstances in which a judge should refrain from participating in a case, the problem of recusal. The third is the proper scope of a judge's nonjudicial activities. The rules and principles governing judicial ethics arise from custom and tradition; the constitutional guarantee of due process (see Due Process, Procedural); statutory provisions enacted by Congress; and rules adopted by the judiciary for its own governance. In general, justices of the Supreme Court are bound by the same principles of judicial ethics that govern judges of lower federal courts and state courts.
These basic principles are formulated as rules in the Code of Judicial Conduct, recommended by the American Bar Association and promulgated in 1972. Although the Code of Judicial Conduct does not govern the Supreme Court, its provisions reflect custom and the common law and by implication are applicable to the members of the Supreme Court.
According to these principles, in performing official functions a judge should be diligent, attentive to the contentions made by the parties, intellectually honest, and courteous in dealings with litigants, attorneys, and fellow judges.
Another basic principle requires that a judge not participate in a case in which he has been personally involved, or has a financial interest, or with respect to which his impartiality might reasonably be questioned. This standard for recusal is codified in a federal statute that applies to Supreme Court justices as well as to other federal judges. In Liljeberg v. Health Services Acquisition Corp (1988) the Supreme Court held that a federal district judge should have disqualified himself when he was a trustee of a hospital that might have indirectly benefitted from his decision.
Constitutional decisions also establish that a judge should not participate in a case in which he has a direct interest. In Aetna Life Insurance Co. v. Lavoie (1986), the Court ruled that participation by a state supreme court justice in a case when he was a party to other pending litigation involving an identical legal issue violated the Due Process Clause of the Fourteenth Amendment. This principle would apply to a Supreme Court justice as well. Direct interest includes a financial interest, prior involvement in the matter as a lawyer or other participant, and close family relationship to the litigants. The statute goes further and requires recusal when the federal judge has any relationship that reasonably indicates possible bias.
As for nonjudicial activities of judges, the understood principles have become much stricter since 1970. In earlier years various members of the Supreme Court participated behind the scenes in government and public affairs. For example, Chief Justice William Howard Taft was actively involved in many controversial issues, not limited to those affecting the federal court system. Justice Felix Frankfurter gave advice to President Franklin Roosevelt and regularly discussed affairs of state with his friend Dean Acheson. Chief Justice Earl Warren was chair of a commission that investigated the assassination of President John Kennedy, and Justice Abe Fortas was a regular confidant of President Lyndon Johnson. Activities such as these are now regarded as improper. Justices of the Supreme Court may lecture and participate in discussions of legal topics of general interest and express views on matters affecting the federal courts. Otherwise they are expected to limit their nonjudicial activity to purely personal matters.
The unique aspect of judicial ethics of Supreme Court justices is not the substance of the governing principles but the manner of their enforcement. The conduct of judges of other courts may be challenged before a higher court. In contrast, the propriety of the conduct of a Supreme Court justice is regulated almost entirely by each justice individually. However, public criticism has been an effective influence toward conformity. Justice Fortas was induced to resign largely as a result of publicity given to his receipt of fee payments from a private client while on the bench (see Fortas Resignation).
The only written opinion in which a justice has addressed the propriety of his own conduct is by Justice William Rehnquist in Laird v. Tatum (1972). Before his appointment to the Supreme Court, Justice Rehnquist had been in a position of responsibility in the Justice Department concerning the transaction that resulted in the Laird litigation. The sufficiency of Justice Rehnquist's decision that he could properly participate in the Supreme Court's decision was severely questioned in connection with his appointment as chief justice. In general, however, self‐surveillance has proved adequate.
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See also Extrajudicial Activities; Jackson‐Black Feud
Bibliography
- John Leubsdorf, Theories of Judging and Judicial Disqualification,
New York University Law Review 62 (1987): 237–292
— Geoffrey C. Hazard, Jr.
