A Supreme Court justice committed misconduct and as a result was forced to resign.
I’m not describing a U.S. Supreme Court justice, of course — there’s virtually no accountability at the federal high court despite a well-publicized litany of ethical breaches — but rather the now-former chief justice of New Hampshire, Gordon MacDonald.
His ethical lapse? Orchestrating a scheme where a favored employee, who was laid off under the guise of “cost savings,” was permitted to collect $50,000 for her unused vacation and sick days and was rehired two days later for a different job. The state’s framework for maintaining judicial ethics provides a prime example of a fair and transparent system that should be adopted for the U.S. Supreme Court. And many other states have similar processes.
Thanks to reporting by New Hampshire Public Radio and others, this arrangement came to the attention of the New Hampshire Judicial Conduct Committee, which the state supreme court established to investigate judges for potential violations of the state’s Code of Judicial Conduct. The committee comprises 11 Granite Staters, only three of whom are judges, chosen by a combination of the judiciary, legislature, governor, and state bar association. The code lays out rules for how judges should act in and out of the courtroom and closely follows the American Bar Association’s Model Code of Judicial Conduct and the federal Code of Conduct for U.S. Judges.
In the course of an investigation, the committee may compel testimony from judges accused of misconduct, along with witnesses and ethics experts, and it may conduct public hearings. Once an investigation is completed, the committee may vote to dismiss the complaint or make recommendations to the state supreme court on sanctions, the harshest of which is suspension without pay for a certain time since, as in the federal system, only the legislature can impeach and remove a judge.
Shortly after the public radio story ran, the committee opened an inquiry into the MacDonald incident, and in the end, it found that the chief justice had violated multiple rules. Instead of fighting the findings, MacDonald agreed with the conclusion and resigned.
The fact that the top judge in the state forfeited his job thanks to the committee’s investigation speaks to the power of the Granite State’s judicial ethical framework. In fact, every state has a commission or similar entity that acts on complaints of misconduct against judges. There may be an exception regarding their work product here or there, but by and large, they take their work seriously and are effective in identifying and rooting out unethical judicial behavior.
Many of them — from Alaska to Arkansas to Wyoming — are like New Hampshire in that complaints can either be brought to the attention of a judicial discipline body, or the body can open an inquiry of its own volition. In a handful of states, including California and Utah, the disciplinary body has the power to suspend or remove a judge, subject to automatic review by the state supreme court. In most states, though, disciplinary commissions can only recommend suspension and removal, with those powers reserved for the apex court or the legislature.
On the other hand, in the lower federal courts there’s no outside committee that reviews whether a judge has committed misconduct. All reviews are internal. The chief judge of an appeals court plays gatekeeper, dismissing complaints or advancing them to a special committee comprising a handful of judges. This committee investigates a claim and makes a recommendation to the circuit’s judicial council, whose members are appeals and district court judges. That council can then hand down a punishment, the harshest of which is suspension for a specific time period, albeit with pay since the Constitution does not permit reducing the salary of a sitting judge.
That said, the framework is not toothless. Just last month, thanks in part to a complaint I filed, a federal district court judge in Michigan who was arrested for a DUI last fall agreed to take a one-year leave from his judicial duties, participate in ongoing treatment regarding his alcohol use, submit to random testing and take senior status wherein the judge’s duties are reduced.
Now compare that to the ethics framework at the U.S. Supreme Court. You can’t because there isn’t one.
There’s no inbox to receive complaints. There’s no committee of any sort that can review the behavior of a justice or make recommendations for sanctions or remedial actions.
There’s the Supreme Court’s Office of Legal Counsel, which can offer ethics advice to justices when they ask, but its remit is not to police their behavior. And as of 2023, there’s an ethics code, but it’s merely “advisory.”
Similarly, justices can request an ethics advisory opinion from a panel of lower court judges called the Judicial Conference Committee on Codes of Conduct, but the advice is not binding and is rarely made public.
As more Americans are starting to pay attention to the yawning gap between what the justices’ ethical responsibilities are and what they should be, the Supreme Court should look to the states for establishing a framework that would help identify and root out bad behavior and, since not every complaint is meritorious, could help vindicate justices against meritless accusations.
And if the Supreme Court demurs, Congress has the authority to establish a process for holding justices accountable when appropriate.
No enforceable ethics regime is perfect, and in fact, the New Hampshire Judicial Conduct Committee will hold a hearing in December concerning the conduct of a different former supreme court justice, Bobbie Hantz Marconi. Last year, she pled no contest to a charge relating to accusations she tried to interfere with a criminal investigation into her husband. She lost her law license for a time, stopped hearing cases and left the bench entirely earlier this year when she reached the mandatory retirement age 70. Given that the proper result was reached, the JCC might consider moving on.
