2011 Year-End Report on the Federal Judiciary

As reported here and the NYT, the 2011 Year-End Report on the Federal Judiciary was released yesterday. It is officially under Chief Justice Roberts' name and started with the ongoing issue of judicial ethics, using the federal judge who was chosen as Commissioner of Baseball after the Black Sox scandal as the opening. Judge Landis resigned his seat on the bench, but the controversy lead to formal, if advisory, Canons of Judicial Ethics.

The report notes early on:

Since 1789, every federal judge has taken the same solemn oath to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and “to faithfully and impartially discharge and perform” the duties of judicial office.

It is sometimes noted that the U.S. Constitution or U.S. in general was not overly concerned about true equality until the mid-19th Century, but Equal Protection Clause or no, things of this nature underline that "all men are created equal" was not just something said once in 1776, including in respect to wealth. Madison in The Federalist noted that there were few official barriers of entry to federal office. And, classifications were clearly allowed, but the Constitution repeatedly speaks in general terms, "persons" having rights or Congress not being able to do certain things, no matter who is involved. So, Bolling v. Sharpe noted:

But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

Back to the report. The Chief Justice noted "Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court." And, decided to use the report to partially respond though spoke of "space restraints" (the whole thing is under twenty pages) to explain its limited nature and "judicial responsibilities" makes it improper for him to discuss specific ongoing controversies (such as recusal in the PPACA litigation).

Roberts discussed the Code of Conduct established for the lower courts and how the Supreme Court uses it, along with other things (since the code doesn't cover all issues and is specifically concerned with lower courts), to guide their ethical decision making. This code is a creation of the federal judiciary but Congress also sets forth ethical requirements, including financial in nature. The constitutionality of this, particularly as applied to the Supreme Court, has not been settled, but the justices follow it as a matter of policy. There are also recusal rules set forth, district and appellate decisions on such matters reviewed by the next level.

The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.

A primary issue here is that there is no higher court and justices who recuse cannot be replaced (under current rules; it is not noted that others suggest retired justices or perhaps senior appellate judges could fill-in, if the rules were changed) by someone else. In other cases, colleagues don't judge recusal choices, the matter is appealed. Here, there is no higher court of appeal. So, there is some degree of self-restraint is required. He trusts his colleagues on the point and notes judicial guidelines counsel they: 

“should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.”

The report ends with a full pages summarizing workload issues:

In 2011, caseloads increased in the U.S. district courts and in the probation and pretrial services offices, but decreased in the U.S. appellate and bankruptcy courts.

The  report as a whole is a simply written (and probably useful for that reason) appeal to Congress and others to trust the courts, but loses something in its inability to address specific concerns raised by the critics.  The reason for that lack of specificity is duly noted though the ignoring of proposals to fill in recusals is not as defensible. [A response that is not overly impressed can be found here.]