Chief Justice John Roberts broke ranks with his conservative colleagues one year ago by writing the 5-4 decision to uphold judicial ethics rules prohibiting candidates for judicial office from direct solicitation of campaign contributions. Roberts wrote in Williams-Yulee v. Florida Bar (2015) that the state has a “vital” and “compelling” interest in preserving public confidence in the judiciary.
Puzzlingly, however, Roberts seemed oblivious to that interest this month [June 9] in the Supreme Court’s latest case on judicial ethics. Roberts dissented from the 5-3 decision in Williams v. Pennsylvania that Pennsylvania’s former chief justice should have recused himself from ruling on a death row inmate’s post-conviction challenge.
As Philadelphia district attorney 30 years earlier, Ronald Castille had made what the majority called the “critical” decision to seek the death penalty in the murder case against Terrance Williams. Roberts saw no need for Castille to step out of Williams’ latest attempt to get a new sentencing hearing even though Williams was directly challenging the conduct of the prosecutor’s office in the case.
Roberts’ sense of judicial ethics was finely tuned in the campaign contribution case, but much less so in the new decision or in another recusal case seven years ago. Roberts had dissented in that case, Caperton v. A.T. Massey Coal Co. (2009), when a 5-4 majority rebuked a West Virginia Supreme Court justice for failing to step out of a case involving a big-money contributor to his successful election campaign.
As chief justice of the United States, Roberts appears to recognize his need to serve as institutional spokesperson-in-chief for judicial independence and integrity. But he disserves that role by resisting any constitutional standards for judges to recuse themselves when their impartiality is rightly called into question.
Writing for the majority in the Pennsylvania death penalty case, Justice Anthony M. Kennedy reasoned that Williams had a due process entitlement to a hearing before a tribunal with no risk of bias. Castille’s refusal to recuse himself and leave the decision to his six state supreme court colleagues created “an objective risk of actual bias,” Kennedy wrote in an opinion joined by the court’s four liberal justices.
In the main dissent, Roberts found no need for Castille to recuse himself because he had no prior knowledge of the contested facts in Williams’ post-conviction challenge nor made any decision on the questions raised. Williams based his fifth post-conviction plea on evidence discovered long after his 1986 trial. Under Pennsylvania law, Williams had to show either that he could not have obtained the information earlier or that the government had prevented him from discovering the information. Castille “had not made up his mind” on that question, Roberts said.
Roberts adopted almost willful blindness in taking that position. Castille ran for the state supreme court by boasting that he had sent 45 people to Pennsylvania’s death row Williams one of them. In the new petition, Williams accuses the trial prosecutor of misconduct by failing to disclose information helpful to his defense. A state judge sitting in effect as a habeas court agreed, barred Williams’ execution, and ordered a new sentencing hearing.
State’s attorneys asked the Pennsylvania high court to overturn that decision. As Kennedy rightly wrote, “it would be difficult for a judge in [Castille’s] position not to view the [habeas] court’s findings as a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney.” But Castille rejected a motion that he recuse himself. Instead, he wrote a concurring opinion that called Williams’ petition “frivolous,” criticized Williams’ attorneys for an “obstructionist anti-death penalty agenda,” and faulted the habeas court for having “lost sight of its role as a neutral judicial officer.”
Castille’s bias was in plain view, but not to Roberts or the other dissenting justices: Samuel A. Alito Jr. and Clarence Thomas. The split in the case corresponds to the division in the earlier West Virginia decision. Roberts spoke for all four conservative dissenters in that case, with Kennedy writing for a majority that included the four liberal justices at the time.
Roberts had a more realistic understanding of judicial ethics in the Florida campaign contribution case. A judicial candidate’s direct participation in fundraising, he wrote then, “creates the public appearance that the candidate will remember who says yes, and who says no.” The decision upheld ethics rules on the books in some 30 states. As one of the four dissenters, Kennedy argued that the solicitation ban violated candidates’ political speech rights.
Roberts’ differing positions in the cases may be explained on federalism grounds, according to one leading expert on judicial ethics. Amanda Frost, a professor at American University’s Washington College of Law, notes that Roberts sided with states in each of the three decisions. Indeed, Roberts noted in the Pennsylvania case that many states have rules that would have required Castille to recuse himself.
Roberts may also have been looking over his shoulder, Frost suggests, at the risk of creating recusal standards that could come back to haunt the justices themselves. The justices have steadfastly refused to explain their own recusal standards and have resisted any efforts in Congress to lay down rules. Whatever his reasons, Roberts does the judiciary no good by turning a blind eye to judicial bias whether actual bias or even if only its appearance.