The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Would It Mean For Lower Federal Court Judges To Enforce A Code Of Conduct Against Supreme Court Justices?
Does Justice Kagan really want Chief Judge Kimberly Moore to give Justice Thomas the Pauline Newman treatment?
When Justice Kagan speaks to the Ninth Circuit judicial conference, after cutting through all the pleasantries and bromides, her primary objective is to give the left a to-do list. She doesn't sob in her office. She punches through walls. This year, Kagan casually floated an idea that has taken shape: Justice John Roberts could appoint some panel of "judges lower down the food chain" to review allegations of misconduct.
As a threshold matter, she threw Justice Thomas under his RV, and raised Justice Alito up his flagpole. Not even a year after the Court adopted an ethics code--which was part of Kagan's earlier wish-list--Kagan is already saying that the rules are not enough. There have to be teeth!
I'll repeat a few points I've made more times than I can count. Ethics codes are not bright-line rules. They merely offer guidance to judges about how to proceed. All federal judges, even the Justices, can request informal advice from their colleagues, or judges on other courts. Though not binding, judges tend to do what others have done. Judicial ethics body have only very limited tools to enforce ethics codes. These institutions can issue private and public reprimands. In extreme cases, they can refer a judge for impeachment. At that point, it is up to Congress to act. But the ultimate death sentence is to prevent a judge from being a judge.
Take the Federal Circuit. The well-respected judges of that court have removed Judge Pauline Newman from hearing any cases until she submits to a health exam with the doctor of their choice. Newman filed a valiant legal challenge, but has lost in the District Court, and her hope now lies in the D.C. Circuit. Moreover, the Federal Circuit recently excommunicated her for another year. Newman is 97 years young. Chief Judge Kimberly Moore and her colleagues are probably waiting for Judge Newman to die. This is a stealth impeachment, and the other federal judges have done nothing about it. They are too busy trying to punish litigants in Texas for filing cases where the venue statutes permit them to file. (There is action afoot in the rules committee--stay tuned.) Anyway, I digress.
These are the things that lower court judges can do to enforce ethics codes. Does Justice Kagan really want to empower the likes of Judge Moore and others to suspend Supreme Court Justices from hearing cases? Or allow some inferior panel to force a Justice to recuse from a particular case? Will there now be entire rounds of litigation before these panels immediately after a cert grant?
The Wall Street Journal editorial board raises some other questions:
Could her panel issue subpoenas to investigate allegations? How would it sanction Justices who enjoy life tenure? Wouldn't setting up such a system encourage frivolous complaints, filed for partisan PR purposes or to make the process into the punishment?
Once this process exists, there will be thousands upon thousands of frivolous complaints. Look at the thousand "orchestrated" complaints filed against Judge Aileen Cannon--so many that Chief Judge Pryor ordered the clerk's office to stop accepting them! And this is only one district court judge. Imagine what will happen for Justices Thomas and Alito. There will be at least one judge somewhere who finds one of these complaints meritorious. Who will be the first Justice to get the Pauline Newman treatment? Did Kagan really think this suggestion through a policy matter?
I haven't even addressed the separation of powers problems: inferior judges sitting in judgment of apex officials. No way this flies.
At the end of the day, all of these calls for "judicial reform" are addressing a problem that barely exists, and mandate solutions that would cause substantial harm to the judiciary. Judge Jim Ho frames the issue well in his new National Review essay:
The double standards aren't an accident. They're intentional. They're a strategy to create a perverse incentive structure for judges: If you rule the way the critics dictate, you won't be criticized. You'll be fêted. But if you don't, you'll be ostracized.
That's why the double standards don't seem to trouble the critics. Because, to the critics, this isn't a debate — it's a war. The critics don't want neutrality. They want conformity. If you don't conform, they'll call you corrupt, unethical, racist, sexist, homophobic. They'll say you're just trolling, or auditioning. Whatever it takes for you to bend the knee. And even if you still won't conform, they'll attack you anyway, because others will get the message and comply.
Critics have repeatedly said that they want to pack the Court. But there's no need for them to pack the Court if they can just pressure the Court to do what they want.
I don't think Justice Kagan sees things in quite this light, but her proposals gives ammunition to those who do.
I regret that Justice Kagan started down this road. Given that President Biden will soon announce his own Court reform, this issue is on the wall. Once the filibuster is abolished--as Senator Elizabeth Warren has promised--I suspect the Court will be placed under this regime. My other predictions from four years ago may yet come to fruition.
