United States: Hoosier Overseer?

Last Updated: November 22 2019
Article by Brian S. Faughnan

If you are a reader of legal publications or legal blogs, you've likely already read something about the nightmarish night out in Indiana that resulted in two state court judges being shot and three state court judges being disciplined. You can read all of the underlying facts if you'd like in the decision that was issued earlier this month imposing judicial discipline here.

Beyond making, by pretending I'm not making, a joke about how their trip to White Castle went much worse than Harold and Kumar's, I'm not particularly interested in piling on with opinions about that situation.

If you've ever personally allowed yourself to consume much more alcohol than you should – and as a result experienced a situation in which you stopped making new memories (which as I understand it is actually what scientists and researchers believe happens when you "blackout") — then even if you think what happened would never happen to you, you know deep down that maybe, just maybe, you've been at risk of such an outcome. But, I do want to use this story to make two points that are worth continuing to think about.

First, each of the judges was a lawyer in the past (and still had a law license at the time) and all of the discussions that we have as a profession about mental health and substance abuse issues in our profession apply equally, if not more in some circumstances, to those on the bench. The need to de-stigmatize seeking help and treatment for judges is just as topical as it is for lawyers.

Second, these judges ultimately were subjected to discipline over this. That is because when it comes to lower level judges we have bodies that oversee their compliance with judicial ethics rules and impose judicial discipline. If the players in the events outlined in the Indiana opinion were not Indiana state court judges, but instead were Justice Kavanagh, Justice Alito, and Justice Kagan experiencing a drunken night on the town that went horribly wrong, there would not be any potential for any disciplinary repercussions whatsoever because we have no regulatory body that is imbued with the authority to enforce any code of federal judicial ethics as against any members of the United States Supreme Court.

Sure, it is possible that articles of impeachment could be pursued to seek to remove a Justice from the bench over conduct like that, but . . . well, let's just agree that a body a bit more removed from politics would seem like a more reliable regulator in terms of predicting whether it would see certain conduct as indefensible and worthy of rebuke.

There are people out there generating ideas for ways to bring about ethics reform with respect to the United States Supreme Court. The Brennan Center has put out a white paper with three ideas for reform you can read here. The U.S. House of Representatives passed a bill (not acted upon in the U.S. Senate of course) that would require the Court to adopt a code to govern the conduct of its justices. It has recently (earlier this year at least) been in the news that Justice Roberts is exploring creating such a code.

I don't purport to know what the correct answer is exactly, but I know that while the risk of something like what happened in Indiana happening to members of the highest Court in the land is likely pretty slim, there are real, substantial ethics questions in play about the members of the Court conduct themselves and our system would be greatly benefited if there was clear, and clearly articulated, rules governing their conduct just like exist for all other judges in our country.

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