Codes and Canons of Judicial Conduct

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History of Codes of Judicial Conduct

The American Bar Association first issued rules governing the conduct of judges in 1924. Named the Canons of Judicial Ethics, these guidelines were designed to instruct judges about the ethical framework in which they worked. Through national circulation, most states adopted some version of the canons. In 1969, after experiencing the pitfalls and vagueness of the 1924 versions, the ABA began to re-examine the canons. By 1972, the ABA issued its new Model Code of Judicial Conduct which reduced the canons from 36 in the 1924 version to 7 in the 1972 code.

The last major revisions came in 1990 after two years of study by the ABA. More provisions became enforceable and mandatory rather than laudatory and horatory. Other amendments have been made to the model code since 1990 as a result of specific trends, like campaign finance reform, or court decisions, like Republican Party of Minnesota v. White, to update it in more prompt fashion.

Substance of the Model Code of Judicial Conduct

Canon 1: A judge shall uphold the integrity and independence of the judiciary.

Canon 2: A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

Canon 3: A judge shall perform the duties of judicial office impartially and diligently.

Canon 4: A judge shall so conduct the judge's extrajudicial activities as to minimize the risk of conflict with judicial obligations.

Canon 5: A judge or judicial candidate shall refrain from inappropriate political activity.

Most recently, the various state codes of judicial conduct have come under attack through litigation challenges. While the stated goal of the codes is admirable, their end result is often destructive to core liberties of speech, association, petitioning, and due process secured under the Constitution.

Criticism of the Judicial Codes of Conduct

In 2002, the United States Supreme Court released its opinion in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002). In that challenge, Minnesota provided for a fully elected judiciary, but imposed substantial restrictions on the speech of judges or candidates running for judicial office. The Minnesota Code of Judicial Conduct prohibited a “candidate for a judicial office” from “announc[ing] his or her views on disputed legal or political issues." However, so broad a prohibition prevented citizens, who possess a First Amendment right to receive information, the ability to learn much about the judicial candidate. While the State of Minnesota hoped to secure "impartial" judges, its broad speech restriction offended liberties protected at the very core of the First Amendment by banning speech about a specific subject -- judicial elections.

Since 2002, a variety of similar canons have been stricken in different states throughout the nation. As that list continues to grow, so too do other variants of litigation -- with the end goal of freeing judicial candidates (who wish to run competitively and openly) and the public (who wants to receive as much information as possible and participate in such campaigns as much as possible) from other similar restrictions.