More on the Supreme Court’s opacity

Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.

As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

New bill would increase disclosures regarding federal judicial travel

Senator Sheldon Whitehouse (D-RI) has introduced a new bill in the Senate, dubbed the Judicial Travel Accountability Act. (It has not yet received a number.) The bill would increase the financial disclosures put on federal judges regarding their travel. Bloomberg Law reports:

The Ethics in Government Act requires that judges’ disclosures include only the identity of the source and a brief description of reimbursements over $390. But judges don’t have to identify the dollar value of the reimbursement, and are exempted entirely from reporting any gifts in the form of “food, lodging, or entertainment received as personal hospitality,” Whitehouse said in a news release.

The Judicial Travel Accountability Act would require “judicial officers’” financial disclosure statements to include the dollar amount of transportation, lodging, and meal expense reimbursements and gifts, as well as a detailed description of any meetings and events attended.

The bill calls for disclosures to be filed within 15 days of a trip and to be made available on a public website. The Supreme Court doesn’t post its financial disclosures online and they are made available only once a year

In an ordinary political cycle, it would be easier to see this is as a truly bipartisan effort to promote public confidence in the judiciary, akin perhaps to the regularly introduced “Sunshine in the Courtroom” Acts that seek to bring cameras and other transparency mechanisms into the courthouse. But this is not an ordinary political cycle, and it is hard to see this bill as anything other than a political ploy. Start with Senator Whitehouse, whose public treatment of the Supreme Court has become increasingly unhinged as of late, and who chose to begin his remarks with a focus on the Supreme Court even though its Justices represent less than one-tenth of one percent of the entire federal judiciary. Then there is the list of co-sponsors: 12 Democrats (including two current presidential hopefuls) and only one Republican. It’s not difficult to see this bill as primarily an effort to turn the courts into a political football once again.

It is a dangerous thing when politicians drag the court system into their partisan squabbles, and it is in my view a significant reason why the public increasingly sees the courts as political. But while the federal courts cannot stop Congress from introducing pointed legislation, it can render such legislative chicanery moot by adopting its own reporting practices. Put differently, if the court system itself required judges to report more fully their travel junkets, rather than waiting for Congress to mandate it, courts would reap the benefits of increased public confidence and would not find themselves dragged into the political muck. More on this point in a future post.

Supreme Court declines to hear West Virginia judicial impeachment case

Last year’s drama surrounding the impeachment of West Virginia’s Supreme Court seems to have come to its final chapter. The United States Supreme Court announced that it will not hear a challenge to the decision that halted the impeachment proceedings on separation-of-powers grounds.

Background on the impeachment of the West Virginia justices here, here, here, here, here, here, here, here, here, and here.

Delaware to appeal holding that its judicial appointment process violates the Constitution

Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.

The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.

Against the partisan labeling of Supreme Court Justices

My colleague Lawrence Friedman (an occasional contributor to this blog) has a very nice piece in The Hill today, explaining why labeling individual Supreme Court Justices as “liberal” or “conservative” is a mistake. A snippet:

Attaching such labels to the justices is a common and unfortunate fixture of our politically polarized era. To be sure, the conservative and liberal tags may be accurate to the extent that they characterize the results of a Supreme Court decision as more favorable to one or the other political camp. The labels serve to shorthand judicial decisions for people who desire to know the bottom line. Does the result favor my side or theirs?

But it does not follow that the justices should be characterized in the same way. The shorthand may be helpful to those readers or viewers seeking to absorb the implications of a Supreme Court decision. The problem is that these labels fail accurately to reflect both the role of the Supreme Court in our governmental scheme and the ways in which the justices approach the critical task of judicial review in our democracy.

I urge you to read the whole thing.

“Offended Observers” and Public Religious Displays: the Question of Standing

A guest post by Lawrence Friedman

That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.

Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.

Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.

But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”