Drawing the line between terrible judging and judicial misconduct

If there were a year-end list of the worst judicial decisions of 2022, a top spot would surely go to U.S. District Judge Aileen Cannon’s orders in the Mar-a-Lago search warrant case. Cannon appointed a special master to review the classified documents retrieved from former President Trump’s resort property, causing months of delay in the investigation by the Department of Justice.

Cannon’s insupportable rulings for Trump were unanimously reversed by the 11th Circuit Court of Appeals in a scathing opinion by a panel of three Republican appointees, including Chief Judge William Pryor and two other judges nominated by Trump himself. Nonetheless, there is a crucial line (articulated more than 150 years ago) between a terrible ruling and an unethical one, which some of Cannon’s critics have attempted to obscure.

The appellate judges found that Cannon had “improperly exercised equitable jurisdiction,” reached an “unsupported conclusion,” had been “undeterred by [the] lack of information” and “stepped in with [her] own reasoning” to grant Trump’s requests. Worse, she had crafted “an unprecedented exception” to the law of search and seizure for the former president who had appointed her to the bench. The appellate judges vacated all of Cannon’s rulings as contrary to both judicial precedents and “our constitutional structure.” It was a total repudiation of her judging from beginning to end.

As chief judge, it was also Pryor’s obligation to review a set of ethics complaints filed against Cannon, charging her with political favoritism and “laughably bad” judging in the Trump case. One complaint accused her of engaging in “a partisan attempt” to impede the investigation. Another accused her of entering orders that “defied precedent and lacked sound legal reasoning,” which “gave the appearance of prioritizing the protection of her benefactor from timely prosecution.”

Pryor dismissed all of the complaints. Under the relevant federal statute, he explained, accusations relating to “the merits of a decision” cannot be the basis of a misconduct finding. This exclusion, he continued, “preserves the independence of judges in the exercise of judicial authority by ensuring that the complaint procedure is not used to . . . question the substance of a judge’s decision.”

Thus, even indefensibly bad decisions, as Pryor evidently regarded Cannon’s rulings, do not violate ethics rules. Nor was there sufficient evidence that Cannon “acted with an illicit or improper motive . . . or otherwise engaged in misconduct.”

The attempted weaponization of judicial ethics complaints is not a new phenomenon. It dates back to times even more contentious than our own.

On May 24, 1854, a Black man named Anthony Burns was seized in Boston by a deputy federal marshal, pursuant to a warrant under the Fugitive Slave Act of 1850. Brought in manacles before a federal commissioner named Edward Loring, the captive was informed that his “master,” a Virginian named Charles Suttle, was there to take him back to enslavement, following the formality of a short hearing that Burns – who appeared dispirited and alone – had no meaningful chance of contesting.

Fortunately, Richard Henry Dana, among the most prominent attorneys in New England, stepped forward to represent the prisoner. The Fugitive Slave Act had been designed to make rendition almost seamless, with a minimum of due process and maximum of speed. But Dana persuaded the court that the “momentous issue” should not be decided without the opportunity to present a defense.

Dana tried every conceivable line of defense. He challenged the legitimacy of the arrest warrant, accused Suttle’s main witness of perjury for money and presented a series of “alibi” witnesses who claimed to have seen Burns in Boston at a time when Suttle said he was still enslaved in Virginia.

Not quite willing to attack the legitimacy of slavery (a litigation tactic that would not emerge for several years), Dana proposed a “presumption of freedom” that would have effectively nullified the Fugitive Slave Act. “Let [Suttle] fall short the width of a spider’s thread, in the proof of this horrid category, and the man goes free.”

Loring was visibly troubled by the task before him. But the prisoner’s own words when confronted by Suttle – “How do you do, Master William” – were sufficient to prove that he was “the Anthony Burns named” in the warrant.

Burns was taken to Virginia in chains, but that was not the end of the controversy. Dana published a pamphlet denouncing the commissioner’s judgment as “unjust and inhumane.” Loring found himself a pariah in Boston, scorned by his friends and insulted on the street. Even his butcher refused to serve him.

Commissioner Loring was also the sole judge of the Suffolk County Probate Court. More than 12,000 citizens signed a petition to the state legislature seeking his removal, leading to a hearing on whether Loring’s decision as a federal fugitive commissioner rendered him morally unfit for the Massachusetts judiciary.

Surprisingly, Dana himself stepped forward as Loring’s most prominent defender. Although he continued to excoriate Loring’s decision, Dana argued that judicial independence would suffer if he were ousted from office. The legislators were unmoved, voting twice for Loring’s removal, to be twice vetoed by Massachusetts’s anti-slavery governor. Only on the third attempt, four years later, with a new governor in office and the Civil War looming, was Loring finally debenched.

Cannon’s detractors should heed Dana’s admonition: “If you remove Judge Loring because he executed the Fugitive Slave Law, other judges, here or elsewhere, may be removed because they do not.” The same holds true today. Nine of the 13 chief circuit judges – who initially screen ethics complaints – are Republican appointees. The validation of politicized ethics charges would be more likely to harm progressives than conservatives.

Despite failing in both the Burns and Loring cases, Dana’s integrity stands as an important model. Pryor was surely right to follow his example by drawing a careful distinction between bad judging and punishable misconduct. Respect for judicial independence demands no less, even when it protects rightwing incompetents such as Cannon. 

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial,” which covers the Anthony Burns case, and many other books.