Chief Justice John Roberts published his year-end report on Dec. 31, 2021, and, as is his custom, he discussed the important happenings in the federal judiciary over the previous year. Unfortunately, the effort was a swing and a miss.
In spite of growing public concern over how the third branch handles ethics, judicial misconduct and forum shopping, not to mention the high court’s very legitimacy, his general thesis was that the courts are regulating themselves just fine.
Unfortunately, the depth and duration of the problems uncovered at the judiciary in recent months—particularly that 136 judges illegally violated ethics laws in more than 950 cases in which they had a financial conflict—prove that organizations seeking to self-regulate are better served when they are subject to outside checks and balances. One such check is the Courthouse Ethics and Transparency Act (S. 3059, HR 5720) which would rapidly put judicial conflict documents online.
As the executive director of Free Law Project, the nonprofit organization that built the judicial conflicts database backing the aforementioned investigation, I can attest that several errors in Robert’s report undermine his argument of self-reliance, and demonstrate the need for congressional action.
A Logical Flaw
Roberts notes that hundreds of ethics violations were uncovered, and then extrapolates these findings to calculate a “99.97% compliance rate.” Unfortunately, since the reporting noted the data is partial and incomplete, this flaw in logic would cost an aspiring law student points on the LSAT.
With the Wall Street Journal’s latest reporting, the tally is now up to more than 950 ethics violations with more sure to come. That’s nearly 1,000 federal lawsuits in which parties in a case might reasonably worry about a judge’s impartiality.
What’s more, even this number is a vast undercount for several reasons. Because the Wall Street Journal study was largely based on the names of cases, it mostly excludes parties that are not listed in the caption of the case itself.
Next, the Wall Street Journal investigation only focused on Article III judges. It did not include the financial conflicts of magistrate judges, bankruptcy judges, law clerks, or other judiciary staff members who undoubtedly have similar portfolios to the Article III judge and are subject to similar conflict of interest laws. This means that only a fraction of possible conflicts has been analyzed so far.
Finally, our transaction database is only complete through 2018, as the judiciary has not yet fulfilled our requests for financial disclosures from 2020 or 2021, and we are still waiting for about a third of the judiciary’s 2019 disclosures. So it’s a fair bet that there are thousands more ethical violations that remain unknown both to the public and the judiciary.
It’s About Appearances
Roberts also maintains in his year-end missive that “the Journal did not report that any [conflicts] affected the judge’s consideration of a case or that the judge’s actions […] actually financially benefited the judge.”
Roberts surely knows that it’s nearly impossible to prove that a conflict affected a judge’s consideration of a case or that a judge benefited financially. For one thing, that’s not the point: Appearances matter.
But setting that aside, the Journal did in fact demonstrate quite a lot of this kind of thing. It found that when judges participated in these conflicted cases, about two-thirds of rulings on contested motions came out in favor of their financial interests.
That looks bad, and that’s the point. It’s very difficult to prove that a judge’s conflict altered their consideration of a case, but our work with the Journal showed that more than 100 federal judges violated an ethics law nearly a 1,000 times over the course of a decade without the judiciary even noticing. It takes some gall to read about that on the cover of a national newspaper, to participate in a devastating congressional hearing on the topic, and to turn around and reiterate your need of complete independence.
Self-Regulation Is Not Working
The judiciary is not doing just fine regulating itself. It’s only through the dogged work of Free Law Project and investigative reporting that the judiciary is even learning about this problem at all. Left to its own devices, these violations would still be happening without any check.
One last comment: The changes proposed by lawmakers to curtail this problem—which I strongly support—are mild. The bill largely puts financial disclosures online, and that’s it. It could have called for a complete end to stock investments by judges. It could have added sanctions or fines for judges that violate the ethics law (the law currently has no teeth). It doesn’t do either.
In the end, Roberts should be glad he’s receiving the deference from Congress that he is. He should welcome their support in making the judicial branch more transparent, trustworthy, and accountable.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Michael Lissner is the executive director and co-founder of Free Law Project, a nonprofit that uses data, software, and advocacy to make the legal sector more equitable and competitive.