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The Overarching Legal Fiction: 'Justice Must Satisfy the Appearance of Justice'

Volume 3, Savannah Law Review Colloquium Issue 2016-2017

34 Pages Posted: 13 Jun 2017 Last revised: 14 Jun 2017

Ray McKoski

The John Marshall Law School

Date Written: June 11, 2017

Abstract

In 1924, Lord Hewart famously commented “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Lord Hewart considered his catch-phrase aspirational rather than mandatory. In that same year, Chief Justice William H. Taft, the primary drafter of the first ABA Model Code of Judicial Conduct, made sure that the Model Code held to the theme that judges must do justice and appear to do justice. But Taft also recognized the Code’s hortatory nature. In 1954, Justice Felix Frankfurter, borrowing from Lord Hewart, suggested that “justice must satisfy the appearance of justice.” Like Lord Hewart and Chief Justice Taft, Justice Frankfurter considered the adage aspirational.

With an assist from the Watergate scandal, this aspirational advice turned into a rule of law. The 1972 ABA Code of Judicial Conduct mandated that the judiciary avoid impropriety and the appearance of impropriety. Some Supreme Court justices, including Justice John Harlan, put the appearance of justice at the core of the Due Process Clause. Lower courts quickly fell in line elevating what was intended as a suggestion to a component of due process.

Unlike most legal fictions, “justice must satisfy the appearance of justice,” affects every court proceeding and every litigant. To justify its existence, the axiom is said to enhance public confidence in the legal system. But how can the appearance of justice apothegm improve public trust when it promises something impossible to deliver? The general public suffers example after example of the false nature of the promise. Judges who receive campaign contributions from lawyers and litigants may remain impartial but cannot appear impartial. Similarly, the appearance of justice evaporates whenever a pro se litigant faces an attorney in court.

The “justice must satisfy the appearance of justice” fiction damages rather than enhances public confidence in the fairness of the legal system. Until returned to its aspirational beginnings, the impossible standard will remain a fatally flawed legal fiction.

Keywords: legal fiction, appearance of justice, model code of judicial conduct, Lord Hewart, pro se litigants, Batson v. Kentucky, judicial ethics, campaign contributions

JEL Classification: K40, K41

Suggested Citation

McKoski, Ray, The Overarching Legal Fiction: 'Justice Must Satisfy the Appearance of Justice' (June 11, 2017). Volume 3, Savannah Law Review Colloquium Issue 2016-2017. Available at SSRN: https://ssrn.com/abstract=2984509

Ray McKoski (Contact Author)

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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