Judicial Ethics

| | Comments (3)

Since I've been taking issue with the dominant view on journalistic ethics lately, why don't I try for judicial ethics? There seems to be this common view that it's wrong for a judge to talk about something they might later have to write an opinion on. Justice Scalia, for instance, recused himself from Newdow's case against the federal government about the pledge of allegiance because he'd talked about his views on the subject in public. Scalia and Breyer had a debate this afternoon, and Breyer seemed very hesitant to say anything positive about Scalia's opinions even though it was clear from the context that he wanted to say that Scalia's opinions are almost all excellent. The only reason I can think of why he would view this as improper is that he hasn't himself written on those issues, and judges aren't supposed to reveal opinions on any issues that they might face in court unless they've written an opinion on it before. This is a restriction that I've never understood.

Obviously part of a judge's job description is to be able to figure out how the law applies to cases that are new, ones the judge hasn't thought about. Does that mean a judge can't have opinions about any cases that aren't in that category? I wouldn't think so. Then why would it be wrong to express a view on potential cases one has thought about? The only reason I can think of is that it's somehow showing that you're biased before the fact, and you will be invulnerable to argument on cases on that subject.

There are two things wrong with this. One is that everyone is biased. As a character in a Stargate SG-1 episode said, "Everyone who has a mind has an opinion." Within the restricted domain that statement was intended to cover, it's true. Your opinion might be that the evidence goes both ways, but that's an opinion. If you have no information, that's different. A judge will eventually need a more definite opinion, but any evaluation whatsoever is an opinion. If a judge isn't allowed to evaluate any legal matter before writing an official legal opinion, then there's an awful lot that they teach in law school that they shouldn't be teaching. Simply absorption of what the law states (and everything necessary for understanding it) would be all they could teach, for fear of encouraging future judges to form opinions.

The alternative interpretation is that bias is not a problem, as long as you don't show it. I think that's just silly. Why does pretending that you have no views serve any legal purpose? Judges obviously will have views. Why is it a problem if they express them in public at times? Is it because the people involved with the case might then suspect them of bias? Well, wouldn't they be right? Why does revealing the bias not ok when having it is? I just don't see why pretending you don't have any views, when you obviously do, is supposed to preserve anything sacrosanct in the legal system. If Scalia makes it clear that he opposes forcing the removal of 'under God' from the pledge, how does that make him any less suitable for sitting in a courtroom to hear arguments for both sides of a dispute over that issue?

The only thing I can think of leads to the second problem I have with this overall argument. Perhaps, the defender of the judicial ethics orthodoxy will say, revealing your views before the fact will make you less likely to change your views in the face of argument. I can see that some people might, for pride reasons, not want to publicly change their mind on something they've already said publicly. I'm not sure why someone who has sworn an oath to the Constitution can do that in good conscience, but I guess the worry is that it would be a regular thing. I just don't see it. I just don't see it. Taking a view at one point does not guarantee that you won't be convinced by arguments for a different position once the thing comes to court. Any good judge will look at each case and its own evidence and arguments, realizing that previously considered evidence and arguments on the same sort of case will play a role but may not determine it. An important precedent may be revealed, a new argument may come forth, or facts of the case may show a difference from previously considered cases. So why would it be wrong to express a view about a case one hasn't written an official opinion on? I can't see a good answer to that.


Interestingly federal judges have a six point code of conduct, but it is only advisory for Supreme Court justices. This means that any restrictions, such as Scalia's recusal, would be self imposed. The three guiding ideas are integrity, impartiality, and the avoidance of impropriety. The first three canons address these directly, and they underpin the last three. I think a justice could give an opinion on all kinds of matters. However, the justice would have to be careful that how he gave his opinion didn't give reason to think that his impartiality might reasonably be questioned.

You asked "Why does pretending that you have no views serve any legal purpose?" Well first off it isn't pretending that you have no views. Judicial impartiality is not total neutrality. It is not the case that the judge can have no opinion on the matter. The Canadian Judicial Council's 1991 Commentaries on Judicial Conduct comments on judicial impartiality stating that it "does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge."

Judicial impartiality is one of the fundamental tenets of the adversarial common law system which we and many other countries share. I'd argue that judicial impartiality is one of the hallmarks of our idea of legal justice, and that it is probably embedded in most contemporary constitutions. As a conservative one could argue that the practice of judicial impartiality has a long and useful history. Then on pragmatic grounds one could argue that public confidence and acceptance of decisions depends upon the impartial administration of justice. Further, many of our legal ideas are closely connected to the principle of judicial impartiality e.g. the law of contempt, the rules of natural justice, and the duty to give public reasons.

Much more than this could be said, but one thing that might generate all kinds of reasons is to bear in mind that in the legal system pragmatism dominates.

Matthew, I'm not sure how any of that addresses my worry. I understand that there's some sort of impartiality that a judge needs to have. I just don't think it requires not having opinions and not discussing opinions. You seem to agree with that. So why would it be improper for Scalia to say that he thinks there's no legal reason for removing 'under God' from the pledge or for Breyer to say that Scalia writes excellent opinions?

What I was trying to point out is that judicial impartiality does not require not having opinions and not discussing opinions. However, if a judge does give his opinion it must be such that his impartiality is not reasonably be questioned. In the Newdow case Scalia had commented directly on the 9th Circuit decision indicating that the case was based on a flawed reading of the Establishment Clause. Scalia obviously thought that Newdow was reasonable in questioning his impartiality. Had Scalia not commented directly on the pending case he probably would have been fine in giving his opinion. Interestingly he didn't think the recusal requests regarding the Cheney energy commision case were reasonable.

Leave a comment


    The Parablemen are: , , and .



Books I'm Reading

Fiction I've Finished Recently

Non-Fiction I've Finished Recently

Books I've Been Referring To

I've Been Listening To

Games I've Been Playing

Other Stuff


    thinking blogger
    thinking blogger

    Dr. Seuss Pro

    Search or read the Bible

    Example: John 1 or love one another (ESV)

  • Link Policy
Powered by Movable Type 5.04