Everyone wants the same thing and Congress seems ready to act. So why is the court system trying to keep legislation at bay?
Recently, I have been diving back into organizational theory — a set of theoretical frameworks about how organizations operate which inspired the creation of this blog in 2017. I have been particularly curious about the extent to which the behavior of courts and court systems — as opposed to individual judges — can be explained by external pressures from the courts’ environment. Although much of organizational theory began as a way of explaining the behavior of private firms, it has been extended to the public sector, and I am now convinced that it can profitably explain a wide range of court system behaviors.
Take a very recent example: the Wall Street Journal investigation this month, which revealed that more than 130 federal judges had presided over cases involving companies in which they owned stock. Such financial conflicts clearly require recusal, and while many (perhaps most) of the judges who did not recuse gave plausible explanations that they had simply failed to keep tabs on their trades, the situation has been highly embarrassing for the federal judiciary. The Administrative Office of the U.S. Courts said that the report was “troubling” and that it was “carefully reviewing the matter.” And this week, Fifth Circuit Judge Jennifer Walker Elrod appeared before a subcommittee of the House Judiciary Committee to reaffirm that the federal courts “have taken and will continue to take action to ensure ethical obligations, including recusal and reporting requirements, are met.”
Such assurances may not be be enough for Congress. Bipartisan bills have been introduced in both houses to tighten recusal and reporting requirements. The Senate bill would also require the AO to develop a publicly accessible, searchable online database of judges’ financial disclosures. The federal court system therefore finds itself scrambling to avoid a legislative mandate by showing that it is able to police its financial conflicts internally. Even then, it may not be able to stave off new legislation.
This may seem like ordinary damage control. But the court system’s specific behaviors to date, and range of possible responses going forward, can also be understood through the lens of an organizational theory known as neo-institutionalism. And that theory suggests that the court system’s response is very deliberate and very calculated.
Neo-institutionalism recognizes that organizations operating in the same field tend to behave similarly. Early neo-institutional thinkers postulated that organizations in the same field feel the same pressures — whether coercive (say, from legal mandates), mimetic (from the conduct of others in the field), or normative (from customers and professional organizations) — which in turn drive them into similar behaviors. This is why organizations like accounting firms, universities, and banks often feel very similar in their fundamental approaches and styles.
At the same time, there are outliers. Sometimes organizations break from the accepted wisdom as to the right behavior, either affirmatively moving away from a standard approach or, conversely, resisting pressure to change a longstanding tradition. In a highly influential article published in 1991, Professor Christine Oliver suggested that an organization’s conformity (or lack thereof) could be understood by examining its responses to institutional pressures — pressures that might be viewed differently by different organizations and at different points in time. Later neo-institutionalists would draw from that insight to develop a theory of “institutional logics,” which postulates that organizations make sense of events by references to historical patterns of practice, assumptions, values, beliefs, and rules. The institutional logic(s) that prevail within an organization at any given time may influence members’ views of external pressures and the way in which the organization should respond. Institutional logics, therefore, help explain why an organization may react differently in comparison to peer organizations, or even to its own earlier behavior.
Applying these insights to the federal courts, it is first apparent that the court system is facing significant external pressures in the wake of the WSJ story. Some of those pressures are coercive: Congress is weighing legislation, and even even if the current bills do not pass, the courts have drawn negative attention from the very body that provides nearly all of its funding. The court system must tread lightly with Congress, as it almost always does, if it wants to preserve the flow of resources needed for it to do its job. Other pressures are normative: the legal profession is rightly concerned about the appearance (or worse, presence) of bias based on financial conflict, and the general public is increasingly aware of the problem. Moreover, the bar and the public provide the courts with its single greatest resource: legitimacy. If the court system appears biased or illegitimate to its key users, its legitimacy would truly be in crisis.
There are internal pressures, too. While the AO has kept a stiff upper lip, Judge Elrod has spoken in generalities, and Chief Justice Roberts has remained silent on the scandal, there can be no doubt that within the Judicial Conference (not to mention the hallways of every federal courthouse in America) there is real internal concern. Failure to disclose and act on financial conflicts presents a problem both to the courts’ legitimacy and to the fair administration of justice. Put differently, the federal court system’s dominant (and most likely only) institutional logic governing recusal and disclosure demands that it be done accurately every time.
Here, the internal and external pressures both point in the same direction: toward the immediate implementation of a clear policy tightening disclosure and recusal. (This sort of co-directionality is not always present. Indeed, it is often the case that external pressures directly conflict with prevailing institutional logics within the court system: consider, for example, the federal courts’ ongoing resistance to courtroom cameras despite contrary pressures from Congress, the media, the public, and good government groups.) When internal and external pressures align, the path forward should seem obvious.
However, the specific path forward in this instance is not a given. Rather, the court system has to choose between two very different routes to the same result: allowing Congress to dictate the terms of recusal and reporting through legislation, or staving off Congressional involvement through the proactive development of an internal policy. The former approach follows what Professor Oliver called an acquiescence strategy, obeying rules established by others. The latter approach is more of what Oliver called a compromise strategy, in which the courts attempt to balance or bargain with stakeholders rather than simply complying with an external demand.
In Judge Elrod’s testimony and the court system’s press release, we are seeing the initial stages of a compromise strategy. The courts want the same thing as Congress, the bar, and the public — an ethically sound policy that preserves public trust — but they are unwilling to let that policy simply be dictated by Congress. In this sense, the court system’s response here feels similar to its response to a series of fiascos involving inappropriate workplace conduct in late 2017. Within weeks, the court system announced its own internal Working Group on Workplace Conduct, which collected information and announced a set of recommendations in June 2018, just days before a Congressional hearing on the same issue.
Of course, internal deliberations take up time and resources, and most judges would prefer judging time to committee work. So why would the courts try to keep the solution internal, instead of letting Congress reach what would likely be a reasonable and justifiable approach?
They probably don’t want to open the door too wide. The elephant in the room is the absence of any Code of Conduct for the U.S. Supreme Court. All other federal judges are subject to a Code of Conduct, as well as a variety of statutes governing recusal. But Congress may not have the constitutional power to foist a similar code on the Supreme Court, and to date the Court has shown little interest in imposing distinct written standards on itself. Nevertheless, some legislators have urged Congressional regulation of Supreme Court conduct, and leaving Congress in charge of legislation regarding recusal and reporting for all federal judges may invite a broader take on Supreme Court ethics as well.
Of course, there are roughly 700 Article III judges and only nine Supreme Court Justices, and one might expect that many of the lower court judges would like to see a Code of Conduct for the nation’s highest court. But the Supreme Court holds outsized influence within the federal court system, and it is hard to imagine the other judges picking a fight internally — especially with the concern that such a dispute might be made public. So the court system attempts to circumvent the problem of Congressional intervention altogether.
Time will tell whether Congress gets involved, or whether the court system’s own solution to the reporting and recusal crisis will receive a public airing (as the Workplace Conduct Working Group’s recommendations did). But the court system’s approach is an organizationally rational response to the pressures and possible harms it perceives from this problematic news story.
Pictured: Judge Jennifer Walker Elrod.