The Interdependent Third Branch

Rhode Island confronts the future with an aging state supreme court

One of the (many) drawbacks of partisan judicial elections is that strong, knowledgeable, and experienced incumbents are at risk of being removed from the bench based solely on party affiliation. But the reverse is also true: in jurisdictions where judges are unaffiliated and have life tenure, it is often difficult to create any turnover in the judicial ranks — and when turnover does happen, it can happen all at once.

This article in the Providence Journal considers the case of Rhode Island’s supreme court, in which the youngest member is 68 and the oldest in his eighties. There is likely to be some radical turnover coming in the next few years as the current justices retire. It will present a special opportunity for whoever is governor as vacancies, but it also raises important questions about whether one governor should benefit from what could be seen as fortuitous timing.

These are the same questions that are routinely raised at the federal level, thus far without a clear answer.

Will Ohio and Pennsylvania judicial elections become more populist?

That is the question I address in my latest guest post at the IAALS Blog. Check it out!

Seeking a more muscular judiciary

I have a new op-ed up at The Hill, urging the judiciary to be more outspoken about the rule of law and the role of courts in our society. A snippet:

The courts today could use a healthy dose of [John Jay’s] swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.

Please read the whole thing!

Collins on Problem-Solving Courts

Erin Collins (Richmond) has posted a new article, The Problem of Problem-Solving Courts, which looks at the origins of problem-solving courts and questions whether they are really meeting their stated goals. (Problem-solving courts are criminal courts designed to address the unique needs of a specific group of offenders, like drug courts or veterans courts.)

Her conclusion (from the abstract) is quite interesting:

This Article … contends [that] problem-solving courts do effectively address a problem — it is just not the one we think. It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power. Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight. Together, these new insights help explain why the problem-solving court model endures. They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform the system.

It’s an intriguing article that will cause me to think more carefully about the proliferation of problem-solving courts across the country.

California may allow judges to speak publicly about their decisions

The California Supreme Court is weighing a new ethics rule that would permit the state’s judges to speak publicly on any court ruling if it becomes an issue in an election or recall campaign. The San Diego Union-Tribune explains:

The move to amend the Judicial Code of Ethics would allow any judge, not just the jurist involved in a campaign, to comment on “the procedural, factual or legal basis of a decision about which the judge has been criticized during the election or recall campaign,” according to a draft of the proposed rule.

Historically, judges don’t comment on pending cases out of concern it could show a bias to one side or the other, impair the rights to a fair trial or influence how a case develops. The current ethics rules ban judges, and their staff, from making any comment on pending cases.

The decision is spurred by last year’s ugly and successful campaign to recall state judge Aaron Persky, whose extraordinarily light sentence of admitted rapist Brock Turner galvanized a movement to remove him from the bench. Existing ethics rules prevented Persky–or any other judge–from speaking about his decision. If a new rule is implemented, it would go into effect on April 1.

Transparency and resource demands combine to squeeze the Maryland courts

The Capital Gazette reports on a loophole in Maryland’s electronic filing system, which allows attorneys to designate documents as “confidential” without filing a separate motion to seal with the court. Using the designation effective prevents interested parties, including the media, from accessing the court filings.

Court documents are presumed to be publicly available, and normally a party must move the court to seal specific documents and provide good reasons for the request. It appears that when Maryland moved to electronic filing in 2014, the system was set up to allow attorneys in cases with exposing sealing orders to designate certain documents as confidential. Lawyers are warned not to designate documents as confidential unless they are covered by a rule or statute. It appears, however, that many documents that should be public have been improperly designated.

The courts do not monitor electronic filing designations on a regular basis, which is probably sensible given the court system’s limited resources. But some greater allocation of resources — either in monitoring or in fixing the electronic loophole — may now be warranted.

Chief Justice Roberts releases 2019 Year-End Report

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.

The best of 2019

As we reach the end of the year, I am resharing some of my favorite posts of 2019. For the first time, I was thrilled to feature the work of two guest bloggers, and several of their posts are included below.

On exasperated judges (January 10)

The importance of being Chief Justice (Lawrence Friedman, January 15)

For some state judges, lobbying is part of the job description (January 16)

The PACER class action and the problem of court funding (February 14)

The risk of upending settled doctrinal expectations (Lawrence Friedman, March 3)

What should we expect when Justice Alito and Kagan testify before Congress this week? (March 3)

Tweeting judges: a cautionary tale (March 20)

The affirmation alternative: a religious case for atheist oaths (Ryan Groff, April 22)

On federal laws and state courthouses (April 30)

Why did France just outlaw legal analytics? (June 7)

“Offended observers” and public religious displays: the question of standing (Lawrence Friedman, June 22)

On the politics of judicial identity (July 7)

Judge Larsen on State Courts in a Federal System (August 21)

The most pointless judicial election ever? (August 27)

A dispiriting 230th birthday for the federal courts (September 24)

On terrible judicial optics (October 3)

The importance of commitment to judicial accountability in Massachusetts (Lawrence Friedman, October 7)

What is the right level of court system transparency? (November 26)

The costs of judicial interdependence, Part I (December 26)

Here is the best of 2017 and 2018.

Thanks for reading, and please visit us frequently in 2020!

Guam judiciary releases four-year plan

The Judiciary of Guam has released a four-year plan that outlines its objectives and goals through 2023. The judiciary worked with the National Center for State Courts in implementing the plan, using a High Performance Court Framework. According to a short story in the Guam Daily Post:

This framework aims to provide a comprehensive set of organizing concepts that describe what a high-performing court seeks to accomplish, demonstrates how a court’s objectives are affected by its managerial culture, identifies measurable categories of performance, and suggests approaches on assembling and using performance information.

There is nothing earth-shaking about the plan or the framework, but that it precisely why I note it here. It’s another reminder that courts of are typical organizations in many ways, and exhibit typical organizational behavior more often than not.