Preserving Public Confidence in the Courts in an Age of Individual Rights and Public Skepticism

Abstract

Public confidence in the courts is a matter of perception or appearance that may be present or absent irrespective of whether public confidence is warranted in fact. Court defenders, who are convinced that judges (on the whole) have acted properly and deserve the public's trust, have thus devoted themselves to ensuring that judges appear to act properly too. This chapter explores the century-long campaign to regulate appearances of judicial impropriety and the consequences of that campaign - intended and not - for an impartial judiciary and public confidence in the courts. The author chronicles the emergence and eventual entrenchment of rules regulating the appearance of judicial impropriety. As regulators came to take appearances ever more seriously, they promulgated enforceable rules that prohibited judges from saying things or associating with others in ways that could create appearance problems. Paradoxically, this effort to strengthen rules regulating appearances by making them more enforceable may (to an as yet uncertain extent) have had the opposite effect, rendering them vulnerable to constitutional challenge on first amendment grounds. The net effect has been a detectable shift away from rules prohibiting speech or association that creates appearance problems, toward rules that implicitly authorize the underlying speech or association but require judges who thereby create appearance problems to disqualify themselves from cases in which such problems would call their impartiality into question. This development has potentially profound implications and suggests the possibility of a new paradigm in which judges are welcomed into the marketplace of ideas and encouraged, not just permitted, to say what is on their minds (on the theory that more speech is always better than less), so that litigants can better inform themselves of judicial biases that may warrant disqualification. There are two possible consequences: One is that judges will start to recuse themselves en masse from cases raising issues upon which they have taken public positions. Second, and more likely, judges will reinterpret the disqualification rules to allow judges to hear cases despite appearance problems created by their speech and association, so as to ensure an adequate judicial workforce. In that event, what was once a system of regulation designed to minimize appearance problems will have gradually given way to a system of partial impartiality that cultivates them.