Judicial codes and rules Summary

  • Last updated on November 11, 2022

Prescribed professional standards that govern the conduct of the judiciary as it performs its duty to render judgments.

The House of Delegates of the American Bar Association (ABA) adopted a Model Code of Judicial Conduct, which in turn was adopted in some form by most state and federal jurisdictions in the United States. The Judicial Conference, established by the U.S. Code, adopted the model code and recommended to Congress that the Model Code be enacted into legislation applicable to all federal courts, including the Supreme Court. The ethics statutes, or rules, that appear in Title 28 of the U.S. Code are those enacted by Congress for federal courts pursuant to that recommendation, and they are sometimes referred to as the U.S. Judicial Code.

The Judicial ConferenceJudicial Conference, which consists of the chief justice of the United States and certain other judges from the various federal circuits, convenes at least yearly to survey the condition of federal court business, to study rules of procedure, and to plan federal court management and policy. After convening, the Judicial Conference submits an annual report to Congress making recommendations for new or amended legislation.

Before beginning to perform duties as justices of the Supreme Court, nominees are required by section 453 of Title 28 of the U.S. Code to affirm or swear that they “will administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent upon [them]” while justices for the United States. The U.S. Judicial Code, as well as the ABA Model Code, emphasizes the concept of impartiality on the part of judicial officers, reflecting its importance in maintaining the integrity of the judicial system.

U.S. Judicial Code

Under section 455 of Title 28 of the U.S. Code, Supreme Court justices must disqualify, or recuse, themselves in any proceeding in which their impartiality “might reasonably be questioned.” The duty rests with the justices to disqualify themselves if they have a personal or professional bias originating from knowledge or interests gleaned from outside the case before the Court. In other words, the justices must disqualify, or recuse, themselves if their extrajudicial activities might possibly affect their judgment in a particular case. If justices recuse themselves, the Judicial Code allows the justices to accept a waiver of disqualification provided that all parties participate in the waiver after the justice has made a full disclosure on the record. The justices’ reasons for disqualifying themselves are confidential. Although the reasons can sometimes be surmised by the public, only the actual disqualification is released to the public record.

The Judicial Code prohibits waivers in other, more specific situations. If a justice has knowledge regarding disputed facts in a case before the Court or previously has served as counsel for one of the parties in private practice or in a governmental advisory capacity, recusal is required. Knowledge learned about a case in a justice’s judicial capacity is distinguished from that gained before the person became a justice. The former does not require recusal; the latter does. Also, the rules require recusal if a justice or a lawyer with whom the justice has practiced was a witness concerning the proceeding or has expressed an opinion regarding the controversy before the Court.

The justices must disqualify themselves when they have individual or fiduciary financial interests in the subject matter of the controversy or any other interests that could be substantially affected by the judgment. These financial rules apply to the interests of the justice, the justice’s spouse or minor children, or any relative within the third degree. Although the rules place affirmative duties on the justices to familiarize themselves with their own financial affairs and prohibit them from practicing law while serving on the bench, the rules do not require the justices to report income from outside sources. Furthermore, the rules allow the justices to divest themselves of financial interests that might cause disqualification if the justice discovers an interest after devoting substantial time to a controversy.

The final instances in which waivers are prohibited are when a justice, his or her spouse, or a relative within the third degree is a party to or a lawyer or witness in the proceeding. “Proceeding” in these cases includes all stages of the controversy from the trial through all appeals.

ABA Model Code of Judicial Conduct

The Model Code is an extensive document that includes a preamble, five canons, explanatory sections for the separate canons, and commentary material. Because Congress did not enact the entire Model Code as legislation applicable to the federal bench, the provisions not encompassed in section 455 of Title 28 are not mandatory for the Court justices. However, the Model Code can be referred to for guidance.

Further Reading
  • Baum, Lawrence. The Supreme Court. 6th ed. Washington, D.C.: Congressional Quarterly, 1998.
  • Boot, Max. Out of Order. Foreword by Robert H. Bork. New York: Basic Books, 1998.
  • Choper, Jess H., ed. The Supreme Court and Its Justices. Chicago: American Bar Association, 1987.
  • Witt, Elder. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly, 1990.

American Bar Association Committee on Federal Judiciary

Appointment and removal power

Collegiality

Extrajudicial activities

Judicial activism

Judicial immunity

Judicial self-restraint

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