Code of Judicial Conduct

The preface to the code stands in sharp contrast to the weak preamble of the canons. According to the preface, the Code of Judicial Conduct "states the standards that judges should observe. The canons and text establish mandatory standards unless otherwise indicated. It is hoped that all jurisdictions will adopt this Code and establish effective disciplinary procedures for its enforcement."

The code borrows much from the original canons. However, it is more specific and thus more enforceable. There had been 36 separate original canons, "a curious mixture of generalized, hortatory admonitions and specific rules" (Sutton, 1972 Utah L. Rev. 355, 355–56). The code trimmed the number of canons to seven and supplied each canon with subsections and comments.

In 1990, the code was amended by the ABA. Two canons were deleted, resulting in a total of five canons, and the wording of the remaining canons was changed to achieve gender neutrality. Changes and additions were also made to the subtext and comments accompanying each remaining canon.

Canon 1

A judge shall uphold the integrity and independence of the judiciary.

Canon 1 addresses the need for impartiality in judicial proceedings and the importance of judicial independence. This canon is a catchall; it holds, in part, that judges should "participate in establishing, maintaining and enforcing high standards of conduct" and "personally observe those standards."

Canon 2

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

Canon 2 broadly prohibits conduct that would impair, or appear to impair, judicial impartiality. A judge must comply with the law and avoid favoritism and the appearance of favoritism. For example, a judge may not be a member in an organization that invidiously discriminates on the basis of race, sex, religion, or national origin.

Canon 3

A judge shall perform the duties of judicial office impartially and diligently.

Canon 3 contains rules regarding conduct in the judge's official capacity. This canon is the most comprehensive. It addresses the judge's duties in general, public comments, administrative responsibilities, disciplinary responsibilities, and disqualification. Canon 3 also contains a variety of rules designed to eliminate bias and prejudice.

Canon 4

A judge shall so conduct the judge's extrajudicial activities as to minimize the risk of conflict with judicial obligations.

Canon 4 reaches far into the judge's private life. Although the first comment acknowledges that a judge is not expected to live in isolation, comment 2 directs that a judge should refrain from, for example, jokes or remarks that may demean individuals "on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." The canon prohibits a judge from appearing at a public hearing before, or consulting with, an executive or legislative body or official. An exception is made if the appearance concerns the law, the legal system, the administration of justice, or the judge or the judge's interests.

A judge is prohibited, through this canon, from accepting appointment to a government committee, commission, or position if the committee, commission, or position is concerned with issues other than the improvement of the law, the legal system, or the administration of justice. Exceptions to this prohibition are made for historical, educational, and cultural activities.

This canon also prohibits judges from practicing law (except on the judge's own behalf or to give uncompensated advice), accepting employment or service in organizations that would ordinarily come before the judge, and engaging in business dealings that would be perceived as an exploitation of the judge's position. Financial interests, gifts, and the reporting of financial assets are also covered in Canon 4.

Canon 5

A judge or judicial candidate shall refrain from inappropriate political activity.

Canon 5 prohibits public political activity by a judge. A judge may not, for example, act as a leader or hold an office in a political organization, publicly endorse a political candidate, or make speeches on behalf of a political organization.

Under this canon, a judicial candidate may not promise any judicial conduct except the faithful and impartial performance of official duties. A judicial candidate may not authorize or knowingly permit another person to act in violation of Canon 5, but a judicial candidate may establish a campaign committee to carry out advertising and fund-raising. Canon 5 also identifies which provisions of the code do not apply to retired, part-time, and temporary judges.

Each state has crafted its own interpretation of Canon 5 and the boundaries of political campaigns for judgeships. Some states are looser than others in terms of what a candidate may say or whether a political party may endorse a candidate. In many states judicial elections have been nonpartisan and lackluster, as candidates cannot disclose their political or legal view without risk of being disciplined under the professional conduct rules for attorneys.

Minnesota's restrictions on political speech for judicial candidates triggered a lawsuit that led to a landmark Supreme Court decision in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). A lawyer sought to run for the Minnesota Supreme Court but objected to Canon 5 restrictions. The Minnesota Republican Party sued in federal court to remove Minnesota's restrictions on speech and party endorsements in judicial elections. The district court and the circuit court of appeals rejected the claims, finding that the state had good reasons for regulating judicial elections.

The U.S. Supreme Court, however, overturned the restrictions on what a candidate can say in a campaign. The Court found that Cannon 5 announce clauses, which prohibit candidates from discussing their views on legal and political views, were unconstitutional under the FIRST AMENDMENT. Such restrictions are illegal because they regulate speech based on content and burden an important category of speech.

The Court applied the STRICT SCRUTINY test to review the Minnesota rules. Under this test the state needed to show that its rules were narrowly tailored to serve a compelling state interest. Minnesota argued that promoting impartial judicial elections was a compelling STATE INTEREST but the Court rejected the argument, finding the interest to be vague and hard to define. The Court recognized that unrestricted speech might change the tenor of judicial elections, but it found that this was the price the state must pay if it was to select judges by election rather than by some other method, such as judicial selection. In the wake of this decision a number of states began the process of revising their judicial codes to change election rules.