A recent opinion drafted by the Judicial Conference of the United States’ Committee on Codes of Conduct advised federal judges against formal affiliation with the Federalist Society and the American Constitution Society (ACS). This refines past guidance permitting membership.
Additionally, the 2020 opinion states that judges should monitor the activities of the American Bar Association (ABA) to ensure membership remains consistent with the Code of Conduct for United States Judges.
While the Committee views the Federalist Society and the ACS as law-related organizations, they both support distinct ideologies. The Federalist Society describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order.” The ACS is a “nationwide network of progressive lawyers, law students, judges, scholars and many others” and has said that it was formed, in part, in response to the Federalist Society’s success.
The Committee said that affiliation with the Federalist Society and ACS is inconsistent with Canons 1, 2, 4, and 5 of the Code. Membership could convey endorsement of ideologies advocated by the organization, call into questions the judge’s impartiality, and impact the public’s trust in the integrity and independence of the judiciary.
The Committee’s most recent opinion reaffirms and revises previously issued guidance. In 2005, the Committee concluded that the Code doesn’t allow for judges to serve in leadership roles in the Federalist Society or the ACS, noting:
Whether our analysis is under Canon 4 or Canon 5, we believe that sitting on the advisory board or serving as an interim chair of the [state] chapter of the ACS might reasonably be seen as impairing your capacity to decide any issue of constitutional law that may come before you, and might reasonably be seen as your indirect advocacy of ACS’s policy positions.
A couple of years later, when asked by a judge about membership in the ACS, the Committee concluded that membership (as opposed to leadership) wasn’t inconsistent with the Code because the ACS didn’t restrict its membership and couldn’t distinguish between membership in the ACS and the ABA.
The most recent opinion, however, overturns that decision, advising against judicial membership in both the Federalist Society and the ACS. The Committee states that if “holding a leadership position in the ACS could reasonably be seen as impairing a federal judge’s impartiality, then membership in the ACS raises the same concerns.”
While the ABA’s mission “[t]o serve equally our members, our profession and the public by defending liberty and delivering justice” isn’t politically affiliated, the Committee notes that organization has advocated for controversial issues that could be seen as raising questions of impartiality for its judicial members.
Still, the Committee believes that because the ABA is a non-political group that is “clearly oriented toward the improvement of the law as a whole,” any individual policy agenda advanced by the ABA’s House of Delegates is ancillary to the ABA’s core, neutral, and appropriate Canon 4A objectives.
While membership in the ABA’s Judicial Division isn’t necessarily inconsistent with the Code, judicial members should query if positions taken by the ABA might call the affiliated judge’s impartiality into question and necessitate recusal in a given matter.
The Committee emphasized that the advisory opinion shouldn’t be interpreted as raising ethical concerns with the membership of judicial nominees in either the Federalist Society or the ACS. In addition, participation in events sponsored by the ACS, the Federalist Society, and the ABA that are open to the public and address appropriate subject matter is permitted.
The opinion has been circulated to all federal judges for review and comment.
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