By Zachary Meskell
The United States judiciary has a history with corruption. Corruption pervaded every aspect of pre-revolution America, from the customs enforcers up to the colonial judges. Corruption in the United States only worsened a century after the Revolution, with politicians during the late 19th century taking “spectacularly handsome bribes from corporations and demand[ing] kickbacks as the helping hand they extended often came with an open palm.” Early twentieth century America, in many ways, had systemic corruption similar to that seen in modern developing countries. Even as recently as the early 2000s, state judges have come under fire for not only individual corruption, but pervasive, systemic corruption rings. Outright bribery is only one problem: state judges have also been known to engage in misappropriation of public resources, nepotism in appointing counsel, and “skimming off the top.”
Yet in spite of the environment around them, the federal judiciary—more or less since day one—has been mostly corruption-free. As Professor Mathew Stephenson observed, even during the quite corrupt nineteenth century, “at least at the federal level, the institutions of justice—courts and prosecutors—seemed relatively clean and basically functional.” If anything, the federal judiciary, and federal prosecutors, have served as a check on corruption at the state and local level, “particularly in the latter half of the twentieth century.” This pattern continues into the present day: Although the federal judiciary comprises 5% of all judges in the United States, they only account for 0.2% of known cases of judicial bribery.
This raises a question: How did the federal judiciary remain relatively free from corruption, especially during the first century of the country’s existence, when corruption pervaded so many aspects of American society, including state and local courts? There are two broad categories of explanation: historical and structural. These are not mutually exclusive alternatives; rather, the historical and structural explanations complement one another.
The historical explanation, which is admittedly the more speculative of the two, focuses on the unusual historical circumstances in which the federal judiciary was conceived. After the Revolution, the (quite corrupt) colonial courts became state courts, and these courts inherited a storied lineage of corruption from the common law courts of England. In contrast, the federal judiciary was more or less invented wholesale with the signing of the 1789 U.S. Constitution. It took a full eleven months for Congress to pass the Judiciary Act and for President Washington to handpick the first members of the federal judiciary. He carefully selected judges of excellent reputation for independence, each of whom had been involved in the crafting of the Constitution itself. John Jay, the first Chief Justice of the Supreme Court, had, at the time of his appointment, more “prestige as a lawyer and statesman” than founding fathers James Madison, Alexander Hamilton, or Thomas Jefferson. Indeed, John Adams, the second U.S. President, described Jay as “of more importance than any of the rest, in deed of almost as much weight as all the rest.” Chief Justice Jay set an important tone for the newly created federal judiciary at its outset, rigorously emphasizing impartiality and independence. In doing so, he perhaps created an early culture among federal judges that was not amenable to corruption, much as George Washington’s personal choices set a precedent for the presidency for decades to come.
Another historical explanation for the federal judiciary’s cleanliness is that its formative decades simply didn’t present a good opportunity for abuse. Whereas state judges had active dockets and were openly on the take, the early federal judiciary struggled with even defining its “unknown duties.” The Supreme Court heard no cases whatsoever in its first five terms. Those offered nominations to the federal bench frequently declined, and even the Supreme Court went through five Chief Justices between 1790 and 1801, mostly because Chief Justices kept resigning to do better things. In short, the only people who were part of the early federal judiciary were those who really wanted to be there. Anyone looking to simply exploit a position of power would be far better off going almost anywhere else in state or federal government.
The historical argument may explain the federal judiciary’s resistance to corruption in its early years, but even a claim that “as the twig is bent, so the tree is inclined” seems to be a stretch after two centuries. To explain the persistence of the federal judiciary’s integrity, we turn to its structural differences from the state judiciaries. Four in particular stand out:
First, the hurdles to bribing a federal judge are significantly higher. Federal judges hold positions of significantly greater prestige and pay compared to their state counterparts, and therefore have more to lose if they get caught soliciting bribes.
Second, federal judges deal with cases that are generally higher stakes then do state and local judges. While the incentive to bribe a judge for a favorable outcome might be stronger in a higher-stakes case, the greater stakes of these cases also mean they attract more oversight and scrutiny from the public. These cases also involve higher-caliber repeat-players (such as national law firms or U.S. Attorney’s offices) that themselves have more to lose by participating in or turning a blind eye to bribery. These observations are corroborated by a comprehensive study that found that of the over 2,700 known instances of judicial bribery in the U.S. between 1967 and 2000, only five involved federal judges—but three of those five involved the largest bribes in the entire dataset.
Third, the relevant differences in federal and state dockets extend beyond the relative average importance of the cases on each. State judges tend to hear the kinds of cases where bribery is more common. For example, based on the data we have, it seems judicial bribery is more likely in traffic cases than any other kind of case. (This makes intuitive sense: traffic cases tend to be low stakes, typically feature pro se defendants, and there is no opposing party present beside the judge.) Additionally, judicial bribery appears to occur more in criminal cases than in civil cases. Federal judges do not hear traffic cases, and criminal cases make up only 3% of the federal docket of first instance. So, some (though not all) of the integrity gap between federal and state judges may be due to the fact that federal judges don’t hear the kinds of cases in which corruption is most likely to occur.
Fourth, it seems that the way a judge is appointed matters. Among state judges, elected judges comprise 87% of the total number of state judges, but 99.5% of known cases of bribes paid to state judges involve elected judges. Putting the same point in reverse, though appointed state judges make up 13% of the total state judiciary, only 0.5% of state court judges who took bribes were appointed rather than elected. In numerical rather than percentage terms, the difference appears even more striking: Between 1967 and 2000, over 2,700 elected state court judges took bribes, while only 14 appointed state judges did so. This disparity might help explain why bribery is also so rare among federal judges, all of whom are appointed. Just as President Washington carefully screened his first sets of nominees, federal judges are nominated by the president, evaluated and recommended by the American Bar Association, are subject to confirmation by Congress, and enjoy life tenure during “good behavior.” None of this guarantees that federal judicial appointees will have high integrity, but it likely helps. Compare this system to states where judges are elected for short terms (incentivizing judges with unsecure futures to “cash out” while they can) – and need not even have legal training.
This is not an exhaustive list, nor a complete explanation. A definitive investigation of the reasons for the U.S. federal judiciary’s relatively high level of integrity would require a much more detailed inquiry—more than is possible in a blog post. Nevertheless, these historical and structural clues begin to shed light on why the federal judiciary has succeeded in keeping to corruption to a minimum. Better understanding the factors that have contributed to a high level of integrity may perhaps also offer lessons for other countries looking to clean up their judicial systems.
