Notorious RBG and Judicial Ethics

Justice Ruth Bader Ginsburg (also known as Notorious RBG) recently made headlines for her comments regarding Donald Trump’s campaign.  Notorious RBG is known as a liberal stalwart of the Supreme Court.  So I was struck when even the editorial page of the New York Times excoriated her comments.

For those of you who somehow missed it, Justice Ginsburg made a series of critical comments regarding Trump, which included calling him a “faker,” stating that she couldn’t “imagine what the country would be” with Trump as President, and commenting that she’d move to New Zealand if Trump were elected.

So what’s the dust-up all about?  Historically, the Justices of the Supreme Court have not strayed into politics.  Sure, late Justice Scalia went on a paid hunting trip with Vice President Cheney during the pendency of litigation involving the White House and Justice O’Connor was heard on TV lamenting the possibility of a Gore Presidency.  But in recent memory, I don’t think any active Justice has waded so forcefully into the political process.  And for good reason – the Supreme Court’s greatest asset is its integrity and the public’s trust.

Almost all judges, whether state or federal, are subject to a code of judicial ethics.  Federal judges must adhere to five “canons”: (1) they must uphold the integrity and independence of the judiciary; (2) they should avoid impropriety or the appearance of impropriety; (3) they should perform their duties fairly, impartially and diligently; (4) they should not engage in extrajudicial activities that are inconsistent with their judicial obligations; and (5) they should refrain from political activity.

Why, then, was notorious RBG not subject to immediate sanctions for violating that fifth canon?  Believe it or not, Supreme Court justices are not bound by those canons.  Chief Justice Roberts has explained to Congress that the Supreme Court is different than any other federal court.  Our Constitution created the Supreme Court and then gave Congress the power to establish other federal courts.  And in establishing those lower courts, Congress created the Judicial Conference (comprised of federal judges) to set policies for those lower courts, including establishing the five ethical canons.  But the Judicial Conference was not given power to regulate the Supreme Court.  Accordingly, the canons don’t apply to the Supreme Court.

All of that being said, Chief Justice Roberts has been on record as saying that the Justices “voluntarily” follow the canons and that they “consult” the canons, which “play the same role” for the Supreme Court as they do for the lower federal courts.  He’s been further quoted as saying that the Justices rely on their own “constant vigilance and good judgment.”

Based on Notorious RBG’s recent comments about Trump it would appear that she exercised poor judgment and little vigilance.  When even the New York Times cries foul, you know that there’s a problem.

But even before this most recent episode, there have been other incidents where the public has called the process into question or where unhappiness has been expressed with voluntary compliance.  So, from time to time, various politicians have called for the Supreme Court to formally adopt a binding code of ethics.  So far, the Supreme Court has resisted those calls.  Perhaps in response, Congress even introduced a Supreme Court Ethics Act which, while garnering a large number of co-sponsors, has failed to pass.  However, without going into the details, it’s an open legal issue whether Congress can legislatively enact a code of ethics that would bind the Supreme Court.  It remains to be seen if we will see renewed calls for a formally binding code of ethics for the Supreme Court. For now, however, things remain the same.

In short, that’s why Justice Ginsburg likely won’t face discipline and will be able to get away with an apology of sorts.

What about our Illinois judges?  They, too, are subject to a Code of Judicial Conduct.  If you’re interested, you can find it here:  https://www.illinois.gov/jib/Documents/CODE%20OF%20JUDICIAL%20CONDUCT.pdf  

Because most judges in Illinois are elected (rather than appointed), our code of Judicial Conduct is quite expansive and covers a whole host of issues involving elections.  Unlike most politicians, Illinois’ judicial ethics rules severely limit what can be said and done in a judicial election.  For example, the rules prohibit a judicial candidate from specifically commenting on their views on legal issues and from making personal attacks against an opponent.  That’s why judicial elections are quite tame when compared to the recent round of legislative elections.

If you’ve been paying attention, you’ve almost certainly asked yourself what happens when a judge violates the ethical rules.  In the federal courts, a formal complaint must be lodged with the clerk of court for the court in which the Judge was appointed.  The chief judge of that court is then charged with investigating the complaint and making a determination.  Yep – that’s right, judges are in charge of judging their fellow brethren.

Complaints against Illinois state court judges are filed with the Judicial Inquiry Board.  Unlike the federal system, the Board is comprised of a mix of judges, lawyers and public members.  Complaints can be made anonymously.

Whether we agree with a judge’s ruling or not, it’s vitally important that we all believe that the administration of justice is fair and impartial and that our judges act with the utmost integrity.  Given recent events, it certainly appears that (at least with the Supreme Court) there’s cause to question whether the public has faith in the institution.  A formal and binding set of ethical rules for the Supreme Court should go a long way to restoring that faith.