7.

4 Judicial Ethics
 Judicial Ethics: The standards and norms that bear on judges and that cover such matters as how to
maintain independence and impartiality and avoid impropriety. Authorities of ethical guidelines:
Professional associations, ethical codes, statutes, state judicial commissions
 Professional Associations
- American Judicature Society (AJS): A professional association for judges, lawyers, and concerned
citizens that is involved in judicial ethics through efforts to promote the independence and integrity
of the courts. Publishes the Judicial Conduct Reporter
- Model Code of Judicial Conduct: A code of judicial conduct, adopted by the American Bar Association
in 1972, that replaced the so-called Canon of Legal Ethics, which had been created some 50 years
earlier. Emphasize the importance of upholding integrity, minimizing the appearance of impropriety,
remaining impartial, and avoiding conflicts of interest.
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 State Commissions
- States have adopted their own codes of judicial conduct, not unlike the ABA Model Code of Judicial
Conduct. Most states also maintain judicial commissions that monitor the behavior of judges and
engage in disciplinary actions when necessary.
 Complaints about Judicial Conduct
- Judicial Conduct and Disability Act of 1980: The US legislation that permitted any person to file a
written complaint alleging that a federal judge has engaged in “conduct prejudicial to the effective
and expeditious administration of the business of the courts” or “is unable to discharge all duties of
office by reason of mental or physical disability.” “The people who complain tend to be more upset
about a judge’s decision rather than the judge him or herself”
 Judicial Ethical Dilemmas
- Judge presiding over a case where a relative is related to the counsel of record
- If judges have a private practice on side
- Judge may be former prosecutor
- Business interests
- Appointments of judges
 What makes a good judge?
- Integrity
- Legal knowledge and ability
- Professional experience
- Judicial temperament
- Diligence
- Good health
- Financial responsibility
- Public service

7.5 Judicial Decision Making

 Personal Ideology and Attitudes

- Sentencing research reveals that judges base their decisions on everything from philosophical
preferences to demographic characteristics; Gender is also important.
 Election Considerations
- Researchers have found that elected judges who are nearing the end of their terms tend to vote in
unexpected ways. It also appears that judges take steps to avoid drawing too much attention to
themselves when they are faced with a looming election period.
  Public Opinion
- Has been shown to influence judges’ decisions. Likely an indirect effect
 Strategic Considerations
- Some research suggests that S.C. justices who are not well versed in the details of a particular issue
will be inclined to switch their votes more readily, perhaps to join with a majority.

7.6 Limits on Judicial Decisions

 Importance of Impartiality
- In most situations, judges do not need to be removed at the request of another party because
responsible judges will remove themselves when conflicts of interest exist. Most judicial codes of
ethics require that judges recuse (disqualify) themselves if they have a personal bias or prejudice
concerning a party, have personal knowledge of disputed evidentiary facts concerning the
proceeding, or otherwise have some conflict of interest in the case.
 Decisions Limited to Actual Controversies
- There must be an actual controversy between two parties who have met all necessary requirements
to have their dispute heard in court; moreover, the dispute must involve something nontrivial, and
there must be some sort of “wrong” that adversely affects at least one of the parties.
- Declaratory Judgment: A type of exception to the general rule that judges cannot initiate legal
disputes or cases on their own. In the civil context, when one party is threatened with a lawsuit but
the lawsuit is not yet filed, the party may ask the court to clarify its rights under some statute, will, or
contract. A declaratory judgment is more preventive than reactive. A dispute usually occurs after
some right has allegedly been violated, but a declaratory judgment is intended to be made before this
occurs to ensure that one party does not violate the law or terms of a contract.
 No Involvement with Political Questions
- Founders didn’t intend for courts to serve as a forum for responding to questions involving the public
will.
 Laws Overturned on Narrow Grounds
- Courts sometimes overturn laws on the theory that they run counter to the Constitution. This is rare.
More often, judges engage in one of two actions: 1) they may invalidate only that portion of the law
that is considered unconstitutional rather than the entire law. 2) If there is a question about an
official’s action, the court may hold that the official stepped outside the bounds of his or her
authority, which has the effect of preserving the law.
 No Ruling on the Wisdom of Legislation
- Judges cannot express their personal preferences for or against legislation or such preferences to
influence their decision. The only issue that should bear on whether a statute deserve to be
overturned is its relationship to the Constitution

1. 7.4 Summarize judicial ethics and incompetence as well as what

constitutes judicial misconduct
 Judges who fail to maintain their independence, act impartially, and avoid
impropriety run afoul of ethical standards and guidelines spelled out by various
authorities, including professional associations, ethical codes, statutes, and state
judicial commissions.
 The ABA has identified eight characteristics of good judges: integrity, legal
knowledge and ability, professional experience, judicial temperament, diligence,
health, financial responsibility, and public service.

1. 7.5 Describe judicial decision making

 The scientific literature reveals that judges’ decisions are affected by many
considerations.
 Factors that influence judicial decision making include personal ideology and
attitudes, election considerations, public opinion, strategic considerations,
consensus seeking, and the law.

1. 7.6 Describe limits on judicial decisions

 Judicial decisions are limited in several respects.
 Decisions must be limited to actual controversies.
 Judges cannot answer political questions.
 When laws are overturned, they must be overturned on the narrowest of grounds.
 Judges cannot rule on the wisdom of legislation.