The Judicial Ethics Forum (JEF)

The Supreme Court just upheld Nevada’s Ethics in Government Law, which requires (in short) that public officials refrain from voting on matters in which they have personal interests.  In this case, a city council member voted to approve a casino despite the fact that his campaign manager and close friend had a financial interest in the casino’s development.  The Nevada Ethics Commission censured the council member, and in response, he brought a First Amendment challenge, claiming (among other things) that his vote constituted protected speech.  Rejecting the challenge, the Court concluded (again in short) that recusal rules in these circumstances do not (and did not ever) violate the First Amendment.  The Court was unanimous (as to the result, not as to the reasoning). 

The resulting opinions are relevant and indeed crucial for at least two reasons: (1) the seven-member opinion of the Court strongly validates the historical pedigree and constitutional legitimacy of American recusal laws, both legislative and judicial; and (2) both Justice Scalia (for seven justices) and Justice Kennedy (for his own pivotal self) noted that recusal rules may, quite understandably, be crafted more rigidly for the judiciary than for the legislature.

In particular, Justice Scalia acknowledged that “[t]here are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.”  Op. at 6 & n.3 (distinguishing White).  Justice Kennedy noted in his concurrence that “[t]he Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as [my concurrence] indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context [i.e., the legislative and perhaps regulatory context].  The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, . . . may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.”

Here is the full opinion: Nevada Commission on Ethics v. Carrigan; see also coverage at the Election Law Blog.