Judicial Ethics

Speaking of public censures …

Today we get the chance to write about something that truly is a rare event — the imposition of public discipline against a sitting federal judge. And it is a story that when you reach the end of it leaves you feeling like the punishment was not really harsh enough but also very aware of how much work still needs to be done to try to create a world in which members of the United States Supreme Court can also be subjected to disciplinary oversight.

Before being appointed to the federal district court in South Carolina by the former host of The Apprentice, Joseph Dawson III was a practicing lawyer in South Carolina, working as a county attorney in Charleston, South Carolina. The arrangement was not one where Dawson was an employee but an independent contractor working on a fixed fee contract basis for almost 20 years. Not satisfied with the prospect of a lifetime appointment paying more than $210,000 a year (the 4th Circuit opinion indicates that Dawson’s contract with the county involved “a fixed fee of not less than $250,000” per year), Dawson entered into a severance agreement with Charleston County that was to pay him $216,000 for a twelve-month period going forward for his “institutional and historical knowledge and insight” and “non-legal advice.” The agreement also established that Dawson would receive a 1.5% contingency fee for work he had done on a pending opioids case for the county.

Now, the problems with that deal are multitudinous and relatively obvious — or should have been to a soon-to-be-federal-judge. The Code of Conduct for U.S. Judges prohibits federal judges from practicing law; the Ethics Reform Act of 1989 bans federal judges from being compensated for any work that involves them serving as a fiduciary of any sort. Those problems would be significant enough on their own, of course, but the agreement itself was not entered into until after the November 2020 confirmation hearing that Dawson went through before the United States Senate. Instead, it was entered into a week before his confirmation; thus, it was not disclosed in any fashion to the Senate.

Along with being apologetic and cooperative throughout the disciplinary investigation against him (which was brought about by an ethics complaint filed in February 2021 by “Fix the Court), Dawson also maintained that he always intended on disclosing the compensation received on his annual financial disclosure reports. Despite the fact that everything about that sounds like someone being committed to doing the absolute least they could do, the special committee that undertook the investigation actually made a recommendation that Dawson receive only a private reprimand for all of this.

Right before July 2022 closed out, the 4th Circuit issued an opinion imposing a public reprimand instead. Public discipline, in the eyes of the 4th Circuit, was necessary because, in part, the misconduct had a deleterious effect on the judicial system because the agreement and payment became fodder for discussion in local newspapers and on social media.

One other fun fact in the mix, after the ethics complaint was filed, Dawson and the county entered into an addendum to the agreement that dropped the planned contingency fee and changed what the $216,000 was described as being paid for. Instead of being for future services, the addendum now said that the $216,000 was compensation for unspecified past work.

Maybe I’m just catching myself on a day of being more jaded than usual, but the 4th Circuit’s conclusion that there was “no wrongful intent or pattern of improper activity on the part of Judge Dawson” seems an overly favorable interpretation of the facts as laid out.

Yet, as hinted at earlier in this post, at least we have enforceable laws and rules to which federal district judges (and even appellate judges at the Circuit level) can be held when they go astray.

Unfortunately, the fact that we have no such enforceable rules as against members of the United States Supreme Court is newsworthy yet again.

You may have caught some reporting about an initially secret speech that Justice Alito decided to give in Rome at a religious liberty conference sponsored by the University of Notre Dame. We only ever heard about it because someone with the Notre Dame Law School posted a video of the presentation, which otherwise wasn’t included on the agenda.

I have no interest in linking to the video, but it has lots of troubling bits including ridiculous, but incredibly revealing, statements about religion being under attack somehow and otherwise lashing out at world leaders who took umbrage at the Dobbs decision taking away the previously established constitutional right to an abortion.

Among the portions of the remarks that can be viewed as very problematic for a sitting justice to make really anywhere, much less at a religious liberty conference in Rome at an event sponsored by an entity that frequently appears before him:

There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors. The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. And that will not be easy to do.

This public reprimand is also a stark reminder that we currently have absolutely nothing that can be done about how members of the Supreme Court decide to govern themselves. There are no rules by which to regulate Justice Alito’s decision-making in agreeing to give a speech at a religious liberty conference in Rome, nor any rules to enforce when Justice Alito must next look inward to consider whether his predetermined views of the world should require him to recuse from considering any particular future case. We might find out in June 2023 whether the trip was funded by Notre Dame Law School’s Religious Liberty Initiative (which frequently files amicus briefs with the Court, included one in Dobbs itself) because Justice Alito should have to make a financial disclosure about it by then (under a relatively newly enacted law signed by President Biden on May 13, 2022), but, of course, if Justice Alito were to decide that enforcement of that disclosure law against him violates his religious liberty. . .