The Architecture of Judicial Ethics

In Part I of this article, I conceptualize judicial ethics in a tripartite architecture, with macro, micro, and relational elements. Macro-ethics concern the core principles that define the essential attributes of a good judge. Micro-ethics refer to the body of specific canons and rules that have emerged and evolved to delineate the contours of ethical and unethical judicial conduct, guided by macro-ethics principles. Relational ethics refer to a judge’s ethical responsibilities in relation to other values that constrain the application of micro- and macro-ethics. Relational ethics thus delineate the outer bounds of a judge’s ethical obligations in relation to, and sometimes in tension with: the interests of judges individually to speak, associate, and conduct themselves without unduly vague or burdensome regulation; and the interests of judges collectively, as courts and judicial systems, to operate effectively and with a presumption of legitimacy. To illustrate: Impartiality is a macro-ethics value that underscores the importance of good judges being unbiased and open-minded. A code of conduct canon prohibiting judges and judicial candidates from announcing their views on disputed issues that they are likely to decide as judges was a micro-ethics rule that sought to promote judicial impartiality by forbidding judges from taking public positions on issues that could later compromise their ability to decide those issues with an open mind. But the judge’s first amendment freedom operates as a relational interest that invalidates the rule unless the rule survives strict scrutiny—and in Republican Party of Minnesota v. White, the Supreme Court deemed the rule unconstitutional. The dictates of micro- and macro-ethics, and the competing values that relational ethics weigh in the balance, can best be conceptualized with a metaphor Burbank has deployed to describe the relationship between judicial independence and accountability: a two-sided coin. On one side is the body of micro-ethics rules guided by macro-ethics principles that delineate the conduct of an ethical judge; on the other side are competing values that circumscribe the outer limits of acceptable ethics regulation. Properly understood, neither side of the coin contradicts or negates the other. Rather, they complement each other and coexist in constructive tension. In Part II, I situate the ethics imbroglios summarized at the outset of this article, in the tripartite architecture described in Part I. These controversies have played out in two ways: one, when a consensus emerges, and the other, when it does not. First, when a consensus emerges, it arises out of a general understanding that the controversial judicial conduct in question runs afoul of macro-ethics principles, is under-regulated by micro-ethics rules, is not subject to offsetting relational interests, and requires corrective action. By the same token, this general understanding can cut the other way too, and lead to a consensus that the controversial conduct giving rise to the inquiry does not warrant reform. Second, when consensus fails to emerge, corrective action proposed in response to controversial judicial conduct is resisted on the grounds that such action is unwarranted by macro-ethics principles or micro-ethics rules, and is offset by countervailing, relational interests. The first context encompasses traditional ethics reform scenarios. The second context includes a spate of recent controversies that signals something new: an eroding consensus on the limits of appropriate ethics regulation. Recent developments, in which ethics regulation has been flouted or challenged, call the continuing vitality of the current macro- and micro-ethics regimes into question. Competing values are gaining strength as the judiciary’s shared sense of the scope and contours of micro- and macro-ethics has begun to fracture. In Part III, I argue that there is an inevitability to this development, given the nature of judicial politics in the modern era, and a judiciary that is less homogeneous than when codes of conduct were first promulgated. I conclude, however, by arguing that ethics conflicts can be better managed, and respect for macro- and micro-ethics strengthened, by clarifying the role of codes of conduct in disciplinary processes and revitalizing a consensus in favor of core ethics norms that has been eroded by neglect, partisan politics, and judicial self-interest.