While you were dancing away the last hours of 2019, or perhaps just watching Ryan Seacrest, Chief Justice John Roberts was undertaking the time-honored tradition of releasing his Year-End Report on the Federal Judiciary under cover of darkness. This year’s theme was the judiciary’s importance in maintaining civic education, especially in an era in which fewer Americans are exposed to the brilliance of our Constitution.
I shall have more to say about this theme in a future post, but for the moment I will highlight a few of the more interesting statistics about the work of the federal courts over the past year:
- Cases argued before the Supreme Court continued to decline, with only 73 arguments taking place during October Term 2018. Compare that to 175 arguments back in OT 1984.
- In the federal district courts, civil case filings rose about 5%, and criminal filings rose about 6%.
- Bankruptcy petitions are back on the rise after a one-year drop in 2018.
That is the proposal advanced by Kyle Sammin at The Federalist. Sammin recognizes the folly of term limits for Supreme Court Justices, which would require the practical impossibility of a constitutional amendment. Instead, he suggests that we might promote more frequent turnover by requiring Justices to once again “ride circuit” — the 18th and 19th century practice of having Justices travel across the country to hear more ordinary cases during breaks in the Court’s regular term. Sammin states:
Restoring circuit duties to the Supreme Court would provide a natural way of decreasing tenure on the bench. Travel is not as difficult in 2019 as it was in 1819, but it can still be exhausting. If circuit riding had still been a part of the job, infirm justices such as William O. Douglas, William Brennan, and John Paul Stevens would have left the bench before they were fully in decline. Ginsburg would likely have retired a decade ago, as many on the left wish she had. Instead, arrogance and ease lead to justices remaining in their jobs when they are not up to the tasks appointed to them.
I am intrigued by this proposal, although I am not as optimistic that the additional travel burden would put off any but the most frail Justices. The Court’s current members — even those well into their eighties — are already frequent travelers. They speak at law schools, promote their books, accept cozy summer teaching positions, and so on. Open Secrets, for example, found that in 2018 the Justices collectively took 64 trips that were paid for by others. Justice Ginsburg alone took a dozen trips to far-flung places around the world. And even though riding circuit would involve real judicial work rather that quasi-legal junkets, it seems fair to say that all the Justices truly enjoy their day jobs.
What do you think, readers?
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.
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?”
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.
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.
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.