Judicial Ethics and Identity

• Author: Charles Gardner Geyh
• Position: Indiana University Distinguished Professor and John F. Kimberling Professor of Law, Indiana University Maurer School of Law
• Pages: 233-272

Judicial Ethics and Identity

CHARLES GARDNER GEYH*

ABSTRACT

This Article seeks to untangle a cluster of controversies and conundrums at

the epicenter of the judiciary’s role in American government, where a judge’s

identity as a person and role as a judge intersect. Part I synthesizes the tradi-

tional ethics schema, which proceeds from the premise that good judges decide

cases on the basis of facts and law, unsullied by the extralegal influences of

identity that make judges who they are as human beings. Part II discusses the

empirical evidence, and the extent to which identity influences judicial decision-

making in ways that contradict tenets of the traditional schema. Part III summa-

rizes the state of judicial politics, wherein judges are called to task for depart-

ing from the traditional script and accepting the empirical evidence, which

creates a three-way collision between the traditional model, the empirical evi-

dence, and political reality. Finally, Part IV develops a framework for evaluat-

ing the relationship between judicial ethics and identity through which codes of

judicial conduct can be deployed to mediate the perpetual and constructive ten-

sion between the salutary, tolerable, and unacceptable influences of identity on

judicial conduct. Relying on a roadway metaphor, I argue that judicial ethics,

properly understood, averts collisions between the traditional model, the empir-

ical evidence, and political reality, by replacing an unrestricted intersection

with a cloverleaf that channels the proper and improper influences of identity.

Armed with this new framework, the Article illustrates the framework’s applica-

tion with reference to recent controversies, to the end of showing how it helps

to resolve easy problems, elucidate hard ones, and isolate unavoidable pressure

points that remain.

TABLE OF CONTENTS

INTRODUCTION .. ................................. 235

I. THE TRADITIONAL CONCEPTION OF A GOOD JUDGE .. . . . . . 240

* Indiana University Distinguished Professor and John F. Kimberling Professor of Law, Indiana University

Maurer School of Law. I would like to thank Steve Burbank, Sean Farhang, and Deborah Widiss, for their gen-

erous comments on an earlier draft, and Kendall Bowers, Allison Coffey, Marsha Jean-Baptiste, Brennan

Murphy, and Olivia Potter for their superb research assistance. © 2023, Charles Gardner Geyh.

233

II. THE TRADITIONAL CONCEPTION OF A GOOD JUDGE MEETS

THE EMPIRICAL EVIDENCE ....................... 244

A. IDEOLOGY .......................... .... 245

B. RACE .................................. 247

C. GENDER ................................ 249

D. RELIGION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

E. EMOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

III. POLITICAL REALITY: WHEN THE TRADITIONAL SCHEMA AND

EMPIRICAL EVIDENCE COLLIDE .................... 253

A. CONDEMN AND DEFLECT .. ................... 253

B. MINIMIZE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

C. REMEDIATE ............................. 254

D. EMBRACE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

IV. IDENTITY AND JUDICIAL ETHICS: RE-ENVISIONING THE

MODEL .................................... 257

A. THE TRIPARTITE JUDICIAL ETHICS FRAMEWORK . .. . . 258

B. IDENTITY AND THE JUDICIAL ETHICS FRAMEWORK. . . 259

1. ETHICS, IDENTITY, AND THE TRADITIONAL MODEL .. . . . . . 260

2. REGULATING IDENTITY IN AND AROUND THE SWEET SPOT . . . 261

3. REGULATING IDENTITY VIA DISQUALIFICATION .. . . . . . . . 267

C. THE ETHICS AND IDENTITY CLOVERLEAF .. . . . . . . . . 269

1. THE POINT AT WHICH THE INFLUENCE OF IDENTITY BECOMES

ACCEPTABLE .. .......................... 270

2. THE POINT AT WHICH OTHERWISE ACCEPTABLE INFLUENCES

OF IDENTITY DEVOLVE INTO BIAS ..... ........... 271

3. THE POINT AT WHICH THE RISK OF PARTIALITY IS SUFFICIENT

TO WARRANT DISQUALIFICATION ................ 272

CONCLUSION .................................... 272

234 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:233

INTRODUCTION

Judicial ethics controversies and reform have suddenly made national head-

lines. In March of 2022, Supreme Court Justice Clarence Thomas was criticized

for failing to disqualify himself from a case in which he voted to stay an order

directing President Trump to obey a subpoena for records that included corre-

spondence from Justice Thomas’s spouse.

1

Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see Jacqueline Alemany, Josh Dawsey & Emma

Brown, Ginni Thomas Corresponded with John Eastman, Sources in Jan. 6 House Investigation Say, WASH.

POST (June 15, 2022), https://www.washingtonpost.com/national-security/2022/06/15/ginni-thomas-john-

eastman-emails/ [https://perma.cc/UH97-QHUQ].

In March, the Senate Judiciary

Committee quizzed Supreme Court nominee Ketanji Brown Jackson on whether

she would recuse herself from a pending case against Harvard University, where

Jackson had served on the University’s Board of Overseers.

2

Lauren Camera, Jackson Will Recuse Herself from Harvard Affirmative Action Case if Confirmed to

Supreme Court, U.S. NEWS (Mar. 23, 2022), https://www.usnews.com/news/politics/articles/2022-03-23/

jackson-will-recuse-herself-from-harvard-affirmative-action-case-if-confirmed-to-supreme-court [https://perma.

cc/RCC8-2QUM].

That same month,

Congress enacted legislation

3

Debra Cassens Weiss, Bill Toughening Financial Disclosure for Federal Judges Heads to Biden’s Desk,

ABA J. (Apr. 28, 2022), https://www.abajournal.com/news/article/bill-toughening-financial-disclosure-congress-

for-federal-judges-heads-to-bidens-desk [https://perma.cc/E4TL-YH6L].

reforming financial disclosure requirements for

federal judges following a report that 131 judges had failed to disqualify them-

selves from cases in which they had financial interests.

4

Andrew Levinson, Coulter Jones, Ava Sasani, Joe Palazzolo & James V. Grimaldi, Federal Judges with

Financial Conflicts, WALL ST. J. (Sept. 28, 2021), https://www.wsj.com/articles/hidden-interest-judges-

financial-conflicts-graphic-11632834079 [https://perma.cc/3BNJ-Y9YD].

In May, a draft of the

Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization,

overturning Roe v. Wade, was leaked to the press, which, if revealed by a Justice,

was done in disregard of a ubiquitous ethics directive against judges disclosing

nonpublic information they acquire as judges for purposes unrelated to their offi-

cial duties.

5

Politico Staff, Read Justice Alito’s Initial Draft Abortion Opinion Which Would Overturn Roe v. Wade,

POLITICO (May 2, 2022), https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-

overturn-roe-v-wade-pdf-00029504 [https://perma.cc/6EZP-9GG4]; see CODE OF CONDUCT FOR U.S. JUDGES

Canon 4(D)(5) (JUD. CONF. 2019); MODEL CODE OF JUD. CONDUCT R. 3.5 (AM. BAR ASS’N 2004) [hereinafter

MODEL CODE].

Likewise in May, a Senate subcommittee held hearings on, and a

House committee approved, bills directing the Supreme Court to adopt its own

code of conduct and establishing procedures for judicial disqualification requests

to be decided by judges other than the one whose disqualification is sought.

6

See An Ethical Judiciary: Transparency and Accountability for 21st Century Courts, COMM. ON THE

JUDICIARY, SUBCOMM. ON FEDERAL COURTS, OVERSIGHT, AGENCY ACTION & FEDERAL RIGHTS (May 3, 2022),

https://www.judiciary.senate.gov/meetings/an-ethical-judiciary-transparency-and-accountability-for-21st-century-

courts [https://perma.cc/VXK8-UGGE]; Justin Wise, House Judiciary Panel Advances Supreme Court Ethics Bill,

LAW360 (May 11, 2022), https://www.law360.com/articles/1491956/house-judiciary-panel-advances-supreme-

court-ethics-bill [https://perma.cc/3E8D-8MDJ].

The conduct of the judges giving rise to these ethics issues is inextricably inter-

twined with the identities of those judges as individuals. Viewed broadly, judicial

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