Bench Memos

Law & the Courts

Does Lincoln Caplan Know Up from Down on Judicial Ethics?

Writing in the New Yorker on the question “Does the Supreme Court Need a Code of Conduct?,” Lincoln Caplan manages to get a lot of elementary things wrong:

1. Caplan contends that Supreme Court justices “are the only judges in the United States who are not bound by a formal, full-blown ethics code.” But Caplan’s claim that other federal judges are “bound by” the Code of Conduct for United States Judges is wrong.

As judicial-ethics expert Russell Wheeler of the liberal think tank Brookings has been explaining for a long time, the Code of Conduct itself says only that it “is designed to provide guidance to judges.” It acknowledges that many of its provisions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation.”

Further, the Judicial Conference of the United States, in its Rules for Judicial-Conduct and Judicial-Disability Proceedings, says that the “main precepts” of the Code of Conduct are “highly general” and that the Code “is in many potential applications aspirational rather than a set of disciplinary rules.” As Wheeler puts it, the Judicial Conference’s rules “explicitly reject the position that a Code [of Conduct] violation is, per se, a ground for finding misconduct.”

2. Caplan contends that Supreme Court justices “are not obligated to obey” the “‘same general principles respecting recusal as other federal judges.’” (The second quote is from his quote of a statement by Chief Justice Roberts.) But, in fact, the statute governing recusal (28 U.S.C. 455)—which reiterates the principles in the Code of Conduct—applies to justices as well as lower-court judges. [I added in this second point, and renumbered the following ones, about ten minutes after my original posting.] ​

3. Caplan contends that when there is a motion to disqualify a federal appellate judge, that judge doesn’t rule on the motion himself but instead must leave it to the chief judge of the circuit to decide the motion. Here’s the contrast he draws between Justice Scalia (deciding not to disqualify himself from Cheney v. U.S. District Court) and a hypothetical Scalia still on the D.C. Circuit:

If Scalia had been a member of the United States Court of Appeals for the District of Columbia Circuit, as he was before becoming a Justice, it would not have been up to him to decide whether he should be recused. Under the code of conduct, the chief judge for his circuit would have considered any motion calling for Scalia’s recusal, conducted an inquiry, and resolved the matter.

Caplan is wrong. Lower-court judges routinely decide motions to disqualify them. The Code of Conduct expressly provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” and it draws no distinction between disqualifications pursuant to a filed motion and any other disqualifications. The Code of Conduct never mentions any role for the chief judge of a circuit.

(Caplan evidently is confusing the Code of Conduct with the Judicial Conduct and Disability Act. The Act provides procedures for filing a complaint of judicial misconduct against a lower-court judge, and it confers on the chief judge of the circuit the responsibility for reviewing such complaints.)

4. Reciting a complaint that Chief Justice Roberts, Justice Breyer, and Justice Alito, over a five-year period, each “voted in thirty-seven cases where a company in which they owned stock filed a friend-of-the-court or amicus brief,” Caplan contends that “[t]here is not much ambiguity about” what the Code of Conduct would require of lower-court judges in such circumstances. But the very brief (not even 1-1/2 page) Advisory Opinion he cites leaves lots of ambiguity:

An example of when an ownership interest in an amicus could result in disqualification would be when the amicus is in the same industry as the party and the value of industry stock generally could be substantially affected by the decision in the pending case. [Emphasis added.]

One final point: Wheeler of Brookings has intelligently argued that the “absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system” and that proposals to correct that imperfection “would likely create more problems than they would solve.” Perhaps he’s wrong, but Caplan gives no sign of even being aware of Wheeler’s points, much less of having thought seriously about them.