Article by:
Carolyn A. Dubay*

40 Campbell L. Rev. 531 (2018)

INTRODUCTION

James Madison observed in Federalist No. 51, “If men were angels, no government would be necessary.”1  By design, therefore, our federal and state constitutions separated government functions and created independent institutions, including the judiciary, to protect the people from the danger of political power consolidated in a single person or faction.2  For this system to function properly, the public must have confidence that those institutions will act with integrity, fairness, and efficiency.  The task of promoting and protecting that public confidence is challenging under any circumstances but becomes especially difficult when scandals arise or when politicians attempt to delegitimize the institutions empowered to hold them accountable.  As Abraham Lincoln rhetorically asked a group of students in 1838: “[W]hy suppose danger to our political institutions?”3  Lincoln then ominously warned of threats to our democracy from “men of ambition and talents” and “possessed of the loftiest genius” who would not appreciate or value the limits on political power embedded in the Constitution.4  According to Lincoln, the success of our constitutional democracy depends on a citizenry that is united, well-educated, and “attached to the government and laws.”5  In other words, the public must be educated about the importance of the rule of law and must have confidence in the ability of our government institutions to protect the rights and principles of the Constitution.

Since Lincoln’s speech in 1838, public confidence in government institutions has waxed and waned.6 Calculated political attacks, personal scandals, and the internal failures of institutions themselves have threatened public trust in the integrity and fairness of public officials at all levels of government.  At the same time, high-profile political scandals have periodically led to significant changes in the way public officials are held accountable for misconduct.  In the twentieth century, the Watergate scandal led to the enactment of the federal Ethics in Government Act,7 which reshaped and challenged the role of the independent prosecutor in investigating alleged misconduct in the Oval Office.8  The scandal also spurred significant changes in ethics requirements for public officials and professional standards for lawyers.9

Like officials in the political branches of government, federal and state judges are not immune from scandal and public criticism.  Even so, and as Francis Bacon mused in his 1612 essay Of Judicature, “The place of justice is an hallowed place . . . [which] ought to be preserved without scandal and corruption.”10  Holding individual judges accountable for misconduct raises special concerns, however.  Without a doubt, maintaining public confidence in the administration of justice demands judges be disciplined for misconduct, but at the same time, the competing need for judicial independence demands an accountability process that is free from political influence.  As Alexander Hamilton warned in Federalist No. 78, “all possible care is requisite to enable [the judiciary] to defend itself” from attacks by the political branches of government.11  Even today, judicial leaders are quick to respond to concerns about misconduct in the judiciary in order to protect public confidence in the courts and stave off political intervention into the sensitive area of judicial discipline.12  For the judiciary, therefore, the ethical rules and compliance frameworks that developed in the post-Watergate era are markedly different from the regulatory structure for other public officials.

Looking to the present-day challenges to sustaining public confidence in government institutions, including the courts, the circumstances have changed dramatically since the 1960s.  The types of ethical challenges faced by all public officials have become more complex in the digital age.  As the business of government (and the courts) increasingly goes digital, and as we communicate electronically through email, texts, and social media more often, the ability for sensitive, embarrassing, or confidential information to be shared instantly with others poses new challenges for maintaining public trust in the government.  Sometimes, nefarious actors, such as Julian Assange and his “transparency” organization WikiLeaks, publish leaked or hacked information.  Other times, public officials themselves engage with platforms such as Twitter or Facebook to share information, political commentary, or other news.  The language in these communications has become increasingly raw, outrageous, and politically charged.

This Article examines how judicial policy makers and disciplinary agencies have responded to the threat to public confidence in the courts arising from social media and Internet use by judges.  As in other contexts, expectations of the conduct of judges are drastically different than expectations of political actors.  For example, while a politician can tweet insults, make wild accusations, and use vulgar language, a judge who uses offensive and undignified language in a tweet or on Facebook, or who engages in a public feud with other officials through social media, could potentially face disciplinary action.13  Similarly, while the digital frontier has offered exceptional opportunities for access to information on the Internet, judges continue to be bound by the strictures of the adversarial system that prohibit judges from conducting their own research on disputed factual issues.14

To put these judicial ethics rules in context, Part I of this Article lays the foundation for preserving public confidence in the courts through strict adherence to three core values—independence, integrity, and impartiality.  It then examines how these core values were shaken by the judiciary’s own “Watergate” moment in a scandal involving Supreme Court Justice Abe Fortas and the significant changes in judicial ethics enforcement that followed.  Part II then details how contemporary judicial enforcement agencies and judicial ethics advisory committees have confronted the potential threats to public confidence in the courts arising from the Internet-based conduct of judges.  Looking to recent disciplinary actions involving social media and a wave of concern over independent Internet research, this Part evaluates how this conduct undermines the core values of independence, integrity, and impartiality in the judiciary.  Part III then posits that while some states have adopted prophylactic rules regarding social media use by judges, such restrictions may do more harm than good and thus are a disproportionate response to the potential threats to public trust in the courts arising from such conduct.  Instead, resort to and strict enforcement of the existing rules that require judges at all times to embrace the core values of independence, integrity, and impartiality are both sufficient and adaptable enough to be applied to the variety of disciplinary issues that can arise when judges engage with the digital world.

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