The U.S. Supreme Court is facing a crisis in public confidence: 65% of Americans believe that justices bring political bias to the cases they consider, a staggering number considering the court is supposed to be isolated from political influences.
The problem facing the court is not brand new, of course, but its inaction in the face of widespread doubt is troubling. According to Justice Kagan during a March hearing, Chief Justice Roberts is “studying the question” of whether the justices should impose a conduct code upon themselves. But the court has provided no updates or specifics since.
In a series of posts (part one is here), Fix the Court looks at codes of judicial conduct in courts of last resort in foreign countries and U.S. states. Given SCOTUS’s inaction, states and the international community can provide examples of the potential benefits that might result from adoption.
The California Supreme Court (right), like most state and international courts, has a Code of Judicial Ethics. California’s code serves a similar function to codes in most states, as demonstrated by its core tenets: to promote public trust and confidence in the judiciary; to ensure the integrity and impartiality of the judiciary; and to provide useful guidance to California’s judicial officers and candidates for judicial office as they serve on the bench or stand for election. The code is updated from time to time to handle new exigencies, such as providing guidance for how judges should use social media.
The Code provides a benefit to both the public and the justices. It gives the public confidence that the justices are beholden to a set of ethical standards, and it provides the justices guidance on navigating their personal and professional lives to maintain both integrity and the perception of integrity on the court.
In addition, the California Code is enforced through the Commission on Judicial Performance, composed of judges, attorneys, and citizen members. The Commission has authority over all California courts, and can impose the following sanctions: advisory letter, private or public admonishment, censure or removal from office/involuntary retirement.
The Indiana Code of Judicial Conduct, with its recent amendments, illustrates that the code itself can be dynamic and need not limit the ethical considerations of a state’s judges.
In 2016, out of concern for court access for low-income people in the Hoosier State, the Indiana Supreme Court (right) created the ad hoc Coalition for Court Access. Included in the Coalition’s recommendations was an amendment to the judicial ethics code. In 2019, the Supreme Court adopted the amendment, instructing judges to “facilitate the ability of all litigants, including self-represented litigants, to be heard.” The amendment continues to recommend specific techniques for pursuing justice in cases with self-represented litigants.
In addition to the considerations outlined above, the Indiana Judicial Code provides an example typical of state codes. It prohibits bias, prejudice and harassment. It specifically enumerates protected categories, including race, sex, gender, religion, nationality and others. In addition, the code includes recommendations to guard against external influences and incompetence.
Beyond providing guidance on specific behavior, the Indiana Code outlines a disciplinary process for judges. The Indiana Commission on Judicial Qualifications, consisting of the Chief Justice, attorneys, and community leaders, reviews complaints and can recommend the following disciplinary options: removal, retirement, suspension, censure or a fine.