Judicial Ethics First Principles – Appearance of Impropriety

[Editor's Note: The following essay is by Professor W. Bradley Wendel.]

A new Supreme Court judicial ethics controversy involves . . . another flag. Only a few days ago, the news and online debate were dominated by reports of an upside-down American flag flying outside the house shared by Justice Alito and his wife. An American flag flown upside down is sometimes used as a maritime distress signal. On dry land in 2020, however, it was much more likely to be understood to signify support of the “Stop the Steal” movement. Justice Alito or his wife reportedly displayed the flag as part of a beef with neighbors who had displayed a “F*** Trump” sign in their front yard. Their neighbors, not being Justices on the Supreme Court, have a First Amendment right to put out the sign. Justice Alito’s wife has a First Amendment right to fly the flag, too, but the report kicked off a round of controversy over whether Justice Alito was in violation of any provision of the Supreme Court Code of Conduct, adopted last November.

Another episode, reported in the New York Times on May 22, 2024, involves a flag flown over Justice Alito’s beach house. This was an “Appeal to Heaven” flag, apparently associated with a Christian nationalist movement and carried by some of the rioters during the January 6 insurrection.

With matters pending before the Court that directly pertain to Donald Trump, there was pretty universal agreement (including from reliable Trump toady Senator Lindsey Graham) that this was not a good look. The episode also was an occasion to refer to a traditional, but troublesome principle in judicial ethics – the idea of avoiding the appearance of impropriety. As the NYT article put it:

Judges are not supposed to give any impression of bias, yet the flag could be seen as telegraphing the Alitos’ views – and at a time when the justices were on the cusp of adopting a new ethics code.

The ethics code referred to in the article was subsequently adopted. Like codes of judicial conduct for other state and federal judges, it contains a number of specific rules to determine when a judge should be disqualified (or should recuse themselves – the terms tend to be used interchangeably) from a proceeding. For example, family members who would create a disqualifying conflict if they were a party to the proceeding are defined as “a person related to either within the third degree of relationship, or the spouse of such person.” Disqualifying financial interests are defined to exclude shares in mutual funds, an office in an educational, religious, fraternal, or civic organization, or ownership of government securities. All of this careful work of definition, prohibition, and exceptions should be expected in something calling itself a code of conduct. 

But like other codes of judicial conduct, the Supreme Court Code includes an overarching standard: “A justice should avoid . . . the appearance of impropriety in all activities.” This language is from Canon 2 of the Supreme Court Code but can also be found in the ABA Model Code of Judicial Conduct, some version of which is adopted by most state courts, and the Code of Conduct for (lower) United States Judges. The appearance of impropriety standard is a longstanding pillar of the law of judicial disqualification and recusal. But that doesn’t mean it is a good standard. The regulation of judges, commonly but misleadingly known as judicial ethics, would be better off focusing on actual impropriety and ignoring appearances. 

Here are three reasons why the appearance of impropriety standard should be jettisoned:

(1) It is fatally ambiguous. The standard fails from the outset to specify whose perspective should control. The notorious reasonable person standard in torts at least refers to the “man on the Clapham omnibus” or, in a goofy American version, “the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves.” Gendered and anachronistic as those formulations may be, they at least specify the characteristics that go into the evaluation of conduct. If you know that Clapham, at the time, was a working-class suburb of London, so the man on the Clapham omnibus is equivalent to Joe Six-Pack, you know something about what precautions he would be likely to take to avoid a risk of harm. 

Unlike the reasonable person standard, appearance of impropriety is not about the actor but about the observer, or the judging subject. We need to know more about that person. Are they a lawyer? Do they know anything about the sorts of considerations judges ordinarily take into account in deciding cases? Do they think Chief Justice Roberts is right to say that judges should be like baseball umpires calling balls and strikes? Do they believe there is a such thing as a ball or a strike independent of the umpire’s judgment? 

In addition to these normative assumptions, there potentially are epistemological questions for the observer: Have you spent the time to acquaint yourself with the facts of this case, who the parties are, what claims they are raising, and what evidence they are bringing? What do you know about the allegedly improper connection? Does that party really have business before the court? What were the terms of the deal with the judge? Does this connection matter to the judge? This is almost certainly counterfactual, but suppose the “Appeal to Heaven” flag was also used by an Army Reserve unit in which Justice Alito had served, and the day he flew it was an important day of remembrance for the unit. If that were true – and again, I made it up, so it’s probably not – then it would affect one’s evaluation of the propriety of flying the flag. 

The appearance of impropriety test is often qualified as a reasonable conclusion of impropriety, or a judgment made by a reasonable member of the public. That’s fine, but now all of the normative work goes into the specification of reasonableness. I’m a torts teacher, so I’m all for standards of reasonableness, but I also know that reasonableness standards get fleshed out and specified through application. Much to the annoyance of my students, it’s impossible to really understand what is reasonable conduct without immersion in a bunch of cases and sensitivity to the contexts in which behavior is evaluated as reasonable or unreasonable. There’s a lot of content underlying reasonable person standards, and I worry that casual references to the appearance of impropriety skate over all of that complexity. 

(2) It is a crummy guide to conduct. One of the central features of the rule of law – per Lon Fuller and many others – is that the law should be capable of guiding the conduct of those subject to it. A rule or standard of judicial ethics should be capable of telling judges what they may or may not do. This rule does a good job of providing guidance:

The degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half blood relatives and most step relatives.

On the other hand, in part owing to the ambiguity in the specification of the judging subject, the appearance of impropriety standard is lousy at providing guidance. It’s hard for judges to know when someone – who? – will deem their conduct improper. It’s tempting to fall back on some version of Justice Potter Stewart’s “I know it when I see it” test: Surely a judge knows when something would be regarded as improper. Maybe all symbols that have political or cultural valence should not be displayed by judges. But what about a religious symbol like a cross or Star of David? What about a bumper sticker indicating a donation to the Police Benevolent Society? Someone might regard it as improper to indicate any affiliation with a cause that might come before the Court in some form. 

Judges like to say that they should act in ways that preserve the integrity and independence of the judiciary. That’s in Canon 1 of the Supreme Court Code and is often cited as the foundational principle of judicial ethics. The legitimacy of court decisions depends on the perception that they are impartial. I agree that this is a foundational policy, but it does not follow that rules of conduct should be aimed directly at this policy. To use another torts example, the law of products liability is aimed, in large part, at enhancing consumer safety. But that does not mean that the manufacturer of a product posing complex risk/utility tradeoffs can simply ask “what furthers consumer safety?” The law may permit or require the manufacturer to also consider the cost, availability, and usefulness of the product, as well as the range of consumer expectations and behavior. Tradeoffs, compromises, and balances among competing policies are familiar in the law. Which leads to the final concern:

(3) It blows up more specific policy balances and compromises in the remainder of the Code. As in other areas of the law, codes of judicial conduct have to balance competing considerations. For example, judges should be free to speak, write, and teach on subjects within their expertise. Law schools love to tout their summer programs, (often in attractive locations like Innsbruck) where students can take classes with Supreme Court Justices. Justices also speak before associations of lawyers like the American Law Institute. What about a speech to an organization with more defined political leanings, like the American Civil Liberties Union or the U.S. Chamber of Commerce? Is this off-limits for judges? 

The Supreme Court Code has an answer, and it is in a form familiar to lawyers: There are rules, exceptions, and definitions. A Justice should not speak at an event sponsored by a political party or a campaign for public office, should not speak at an event promoting a commercial product or service, and should not speak before a meeting organized by a group that has a substantial financial interest in a case pending before the Court. Okay, that makes sense – these terms have a fairly clear meaning, so a Justice can know what is permissible and what is not. But then along comes this standard: “In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.” Ack! I thought we had just gone through a series of specific rules defining actual impropriety, but now a Justice also has to think about whether, in the absence of actual impropriety, there is an appearance of impropriety. If that’s the test, then what are the specific rules doing there? 

The Code drafters seem to recognize this problem, because they immediately specify some content to the appearance standard:

Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.

The need to define a safe harbor in this way suggests that the appearance of impropriety standard is too broad on its face. In that case, why use it? If there are close questions and complex policy tradeoffs to be made, they should be made through specific rules that are not all undone by an open-ended standard.

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What does all of this have to do with Justice Alito? I agree with Senator Graham that flying the flag was not good judgment. But poor judgment isn’t the recusal standard. Neither should the standard of appearance of impropriety be. For the time being, however, we are stuck with it in codes of judicial conduct. It is traditional in the field, and judges tend to like it, because they like to proclaim themselves bound to a higher standard than avoiding only actual impropriety. This is a separate problem, arising from the habit of referring to principles of legal and judicial ethics, instead of the law governing lawyers or codes of judicial conduct. I’ll probably write about that separately, but regarding the flags, it would be better if judges, lawyers, and informed observers would focus on actual impropriety rather than getting caught up in trying to pin down the inherently indeterminate idea of appearance of impropriety.