The leak

I wish I could give the stunning leak of Justice Alito’s draft opinion in Dobbs its due today. For now, I will note that I agree with Bari Weiss’s take in its entirety, especially this part:

To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.

The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”

Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”

What did he mean by that? “They think that everything is violence. And so everything is permitted.”

He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”

The Chief Justice has directed the U.S. Marshal to launch an investigation. This is a pivotal moment for the Court, as it works to quickly eradicate this source of institutional rot.

Belva Lockwood and the admission of women to the federal bar

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On this day in 1879, President Hayes signed into law a bill permitting women to practice before all federal courts, including the Supreme Court of the United States. The legislation was largely the handiwork of Belva Lockwood, a pioneering attorney who had lobbied Congress on the matter for years.

Lockwood fought tenaciously to advance her legal career, as well as that of others. When the National University School of Law (now George Washington University) refused to give her a diploma upon completion of her studies, she appealed directly to President Ulysses S. Grant. (She received her diploma a week later.) Even though local judges professed to have no confidence in her, she built a successful law practice in Washington, DC. And when she was rejected for admission to the Supreme Court bar on account of her gender in 1876, she worked to pass legislation that, three years later, opened the Court to all qualified women. Lockwood would argue her first case before the Supreme Court in 1880, and later sponsored for admission Samuel R. Lowery, the first black lawyer to argue a case before the Court.

The landmark 1879 legislation did not open all doors for women in the legal profession. It would be many more decades before most law schools would admit women, and even then on largely unequal terms.* And, of course, the push to create a fully equal workplace (in and out of court) continues today. But Belva Lockwood played a central role in creating a path for so many successful female lawyers over the past 150 years, and it is fitting that we remember her today.

* Here I once more have to kvell about the honor of teaching at New England Law Boston, which in 1908 became the first law school exclusively for women.

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

Great moments in online media

From my web browser’s news feed this afternoon:

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The Sotomayor story is somewhat intriguing in its own right, since the most obvious change in the Supreme Court’s post-pandemic non-interruption policy has been the emergence of a vocal and inquisitive Justice Thomas at oral arguments. One can only wonder what he might have asked over the past thirty years if he had not been swimming in the Court’s predominant ethos of  argumentum interruptus.

Supreme Court to resume in-person arguments; live audio here to stay?

The Supreme Court has announced that it will resume in-person arguments starting in October. The number of people in the courtroom will be strictly limited.

The Court will apparently continue to provide live audio of the oral arguments, a welcome bit of transparency. In addition to giving the public immediate access to hearings, the audio feed has been paired with text and photos of the Justices to allow students to more fully appreciate the flow of oral argument. (Click here, then on the “Oral argument” button on the left, for an example from oyez.org.)

The return to in-person arguments raises one other question: will the Justices continue to ask questions one at a time (in order of seniority), as they did during the pandemic-mandated telephonic hearings? Or will they go back to interrupting each other (and counsel) every chance they get? 

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

Are Supreme Court amicus briefs posing a transparency problem?

That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.

Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.

Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.

What should we expect of Biden when it comes to the judiciary?

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”

Another voice against court packing

With the Biden Administration announcing the formation of a committee to explore reforms to the Supreme Court—including the possibility of adding seats—Democratic political consultant Douglas Schoen offers several words of caution in The Hill for would-be court packers. The key grafs:

Even if Democrats can get rid of the filibuster, packing the Supreme Court on a party line vote would tarnish judicial credibility and would reduce the institution to a partisan tool. Moreover, it would trigger an endless cycle of revenge politics, as each successive party in control would be motivated to add justices to restructure ideological balance on the bench.

The backlash of packing the Supreme Court would be considerable for Democrats, as this move is unpopular with voters. After the confirmation of Barrett, a national survey had found that, by 47 percent to 34 percent, voters think Democrats should refrain from altering the Supreme Court. But most Democrats do want party leaders to add more justices.

So packing the Supreme Court would damage the chances for Biden of achieving his elusive goal of unifying both parties. This would send the message that he is instead interested in fueling the current climate of partisan politics, rather than trying to fix it. It would not only harm his legacy, but would also likely prevent him from being able to pass any meaningful or comprehensive bipartisan legislation in office.

Schoen focuses primarily on the political damage that would be wreaked by court-packing, but the institutional damage to the judiciary would be just as significant. It would dramatically undermine public confidence in the Court through no fault of its own.

Institutions are fragile things. They take generations to build and imbue with legitimacy and confidence, but far less time to destroy. With so many of our political, religious, cultural, and civic institutions already under attack, we should refrain now from opening another wholly unnecessary front.

Chief Justice will not preside over second Trump impeachment trial

Instead, it will be Senator Patrick Leahy in his capacity as president pro tempore of the Senate.

Historically, is not uncommon for officials other than the Chief Justice to preside over impeachment trials. But it remains unclear why Roberts will not be presiding in this instance. Did he subtly send signals that he was not interested? Was he trying to avoid a potential recusal should the trial result be appealed to the U.S. Supreme Court? Was he never asked to preside?

Some interesting thoughts from Gerard Magliocca here and Ann Althouse here.