Media bias and collateral damage to the courts

One of the primary themes of court system interdependence is resource dependence — the idea that courts rely on outsiders to provide some of the key resources they need to operate. Those resources include not only quantifiable goods like money, judges, and courthouses, but also “soft” resources like fair, accurate, and unbiased reporting about the courts and their activities. When the media fails to provide this core resource, public trust in the courts can suffer.

Two recent examples demonstrate the problem.

Continue reading “Media bias and collateral damage to the courts”

New NCSC study finds increased public trust in state courts

The National Center for State Courts’ 2024 survey on the State of State Courts shows increased public trust in state court systems. This year, 63% of survey respondents expressed trust in their state courts, the second year in a row in which the number has climbed. In addition, 54% gave their courts a positive job approval rating, up from 44% just three years ago.

This is indeed a positive trend, especially with so much political effort on the federal level being devoted to artificially depressing the courts’ legitimacy. It’s a signal that Americans can distinguish between political posturing and the important work that their state and local courts do every day.

There is more work to be done. Distressingly — but perhaps unsurprisingly — only one in four respondents believes that state courts are doing enough to help self-represented litigants navigate the court system. But overall, the trends are in the right direction, and a sign that state courts generally have earned the confidence of their communities.

Village justices elected in New York with fewer than 20 write-in votes; one winner “undecided” about whether to take job

Village courts are one of the oddest parts of New York’s notably byzantine court system. Justices are tasked with deciding cases involving traffic fines, evictions, criminal misdemeanors, and some civil matters. Unlike other judges in the state, village court justices do not need to have any formal legal training. But like all other trial judges in New York, they must be elected.

Apparently most citizens of Onandaga County did not care to vote for their village justices, and exactly zero citizens in the villages of Spafford and East Syracuse could be bothered to formally seek the position. As a result, the winner of each town’s election prevailed with fewer than 20 write in votes.

Anthony Albanese, who won the East Syracuse election with 16 write-in votes (and aided by 1,181 blank ballots), is reportedly “undecided” whether to take the position, which pays $9,000 annually.

(h/t Election Law Blog)

Bolivia’s move to judicial elections is not going well

Today Bolivians go to the polls to elect their judges, making the country the first (and so far only) nation in the world that chooses its highest judges at the ballot box. Reports suggest that the lead-up to the election is not going well, with widespread voter apathy and resignation, and lots of behind-the-scenes politicization of the process:

In Bolivia, even senior judicial officials struggle to sound positive when asked to defend the election.

“It should be a calm, easy and simple process, but it has become very litigious, very controversial,” Francisco Vargas, the vice president of Bolivia’s electoral tribunal, told The Associated Press from the court in central La Paz.

This year in Bolivia, experts find it even harder than usual to praise the system. With the posts up for grabs every six years, Sunday’s vote was supposed to take place in late 2023.

But as the deadline approached last year, the Constitutional Court — packed with allies of President Luis Arce — suddenly intervened to push the vote back a year, escalating his power struggle with his former mentor and current rival, Morales, over who will lead their long-dominant leftist party into Bolivia’s 2025 presidential election.

Both understand that whoever wins over the Constitutional Court ensures their own political survival.

New information on threats to federal judges

Jason Leopold of Bloomberg News has unearthed fascinating, and highly distressing, details on some of the more than 2,300 threats that were made against federal judges (including Supreme Court Justices) in 2022 and 2023 alone. The details come from a FOIA request to the US Marshals Service, and reflect investigative reports after the threats surfaced.

In some instances, threats were just examples of idiots blowing off steam. Some were generally angry about a particular court decision. But others were far more serious, including allegations of a hitman plot against a Supreme Court justice and another suspect who appeared to have planned to attack an assistant public defender.

House votes to add 66 new federal judgeships; will Biden veto?

This week, the House of Representatives comfortably passed the JUDGES Act (S.4199), which would add 66 federal judgeships over the next ten years. The judgeships would be phased in over ten years, with the first two tranches coming in 2025 and 2027.

The Senate passed the same bill back in August, but House Republicans stalled a vote on the bill until after the election. Now that Donald Trump will return to the White House, the House Democrats decided that it was their turn to play politics with the judiciary and slow-played the vote until mid-December.

This is an excellent result for a resource-starved judiciary. But it appears that the drama will continue for a while, as President Biden has threatened to veto the bill on his way out the door. It’s worth unpacking the illogic and petulance of his threat.

Continue reading “House votes to add 66 new federal judgeships; will Biden veto?”

Arizona judicial election proposal faces court challenge

A proposal to eliminate retention elections and performance evaluations for many Arizona judges, scheduled to go to the voters in November, now faces at least one court challenge. Opponents filed suit on Friday, claiming (among other things) that the proposal’s title–the Judicial Accountability Act of 2024–is “deceptive” and “intentionally dishonest.”

Intentionally dishonest, even Orwellian, titles for legislative proposals seem a fixture of our modern politics: I’m looking at you, Inflation Reduction Act. Nevertheless, the substance of the proposal raises a number of very serious concerns, as I discuss here.

Opponents filed the case in Maricopa County Superior Court, whose judges would be directly affected by the proposal’s passage. (All Maricopa County Superior Court judges face periodic evaluations and retention elections under the current system.) Thus we see another example of what I have called “judging when the stakes are personal.” I will be curious whether there is any effort to move the case to smaller county where judges are directly elected and therefore do not have a direct stake in the outcome.

Wheeler on the limits of regulating the Supreme Court

Russell Wheeler of the Brookings Institute has posted an astute article about the Alito flag kerfuffle and the resulting cries for his recusal from two pending January 6-related cases. Wheeler sets out why the concepts of recusal and  judicial misconduct, at least with respect to the Supreme Court, are more legally complicated than Alito’s accusers would like.

There is a much deeper story here about why the Supreme Court has been so resistant to self-policing, especially since incidents like this one (and recent revelations about Justice Thomas’s gifted trips) would seem to erode public confidence in the Court. It is a complicated story worthy of a larger post, but I will note as a placeholder that in the Court’s calculus, a public commitment to specific recusal standards would likely reduce its legitimacy by inviting antagonists to turn recusal into an even more prominent political game. I will offer a more extensive explanation in a forthcoming post.

New Florida state budget will increase judicial salaries, repair courthouses, hire more court staff

Florida’s $116.5 billion state budget for the coming year will include about $741 million for the judiciary, an increase of just over $30 million from last year. The money will go to–among other things–3% salary bumps for judges and other judicial branch employees, hiring 101 new FTEs throughout the court system, and improvements to existing courthouses.

Federal Advisory Committee considers impact of AI on evidentiary rules

The federal Advisory Committee on Evidence Rules has begun a very preliminary conversation on how artificial intelligence will impact the reliability and authentication of evidence. The committee met with experts in April and has just begun considering whether new rules will be needed to address AI-related concerns. Among the more prominent issues are (1) how to address allegations that proferred evidence is an AI-generated “deepfake” and (2) what the proper test should be for validating mechine learning outputs.

A good summary of the committee’s progress can be found here. The full minutes of their discussion can be found here (starting at page 108). 

This is somewhat reminiscent of the work of a parallel federal court committee, the Advisory Committee on Civil Rules, to address the discovery of electronically stored information (ESI) two decades ago. That committee eventually landed on a package of amendments designed to address the unique chellanges of producing ESI in civil discovery. But it was not an easy road: by the time the new rules went into effect in 2006, individual judges had starting crafting their own approaches to deal with the cases already in front of them. And just a few years later, the technological landscape had changed sufficiently that additional amendments were needed. One should therefore expect the Advisory Committee on Evidence Rules to proceed cautiously, even as AI’s transformation of the social and business landscape proceeds apace.