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Thursday, November 30, 2023

Judicial Ethics Reform Through Binding Resignations

How can Supreme Court ethics reform respect judicial independence but also have teeth? Ian Ayres and I have a proposed answer. Here are some excerpts from our post over at Balkanization:

In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests. 


To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.


A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.

Posted by Richard M. Re on November 30, 2023 at 09:53 AM | Permalink


It's an interesting idea.

I am intrigued overall by a rich reading of the "good behavior" provision.

There are various ways to enforce this provision, which is a type of qualification. Impeachment is not the only way. This is partially where ethical rules come in. The discussion provides a fruitful examination of this.

I have also seen scholarship regarding other means, including statues that automatically remove judges for certain findings of wrongdoing. One article I read provides an originalist defense.

It's again a fruitful area of research and public pressure.

Posted by: Joe | Nov 30, 2023 12:30:30 PM

Interesting. What we couldn't understand here in that proposal, is how to appeal simply ? A panel of 20 judges is proposed here ( to spread or confuse alleged political favoritism it seems). But appeal would have to be comprised on much less number of judges. Five, is really big number. Then, things would focus again on several judges, and their alleged political affiliation (in the eyes of too many).

So maybe without appealing ? That wouldn't make sense simply. Appealing is sort of constitutional right(even for judges or Justices that have taken the wrong turn or direction in this regard).


Posted by: El roam | Nov 30, 2023 10:57:58 AM

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