Public interest in the Supreme Court is high, but knowledge is low. Should we worry?

The humdrum unanimity of Supreme Court cases is rarely conveyed to the public, even in passing.

CSPAN/PSB has released a new survey of more than 1000 likely voters, concerning their knowledge of and attitudes about the United States Supreme Court.  The results are not particularly encouraging for those who follow the Court closely.

Survey respondents reported very high interest in the Court generally: 90% of respondents agreed that “Supreme Court decisions have an impact on my everyday life as a citizen” and 82% indicated that the issue of Supreme Court appointments was important to their 2016 Presidential vote.  Sixty-five percent of respondents stated that they follow news stories about the Supreme Court “very often” or “somewhat often.”

But at the same time, actual familiarity with the Court and its members is middling at best.  Nearly 60% of survey respondents could not name a single Supreme Court Justice.  And while 71% of respondents said that they were following the recent news about President Trump’s Supreme Court nominee, only 28% could actually identify that nominee by name.

Also significant were the latest numbers regarding the public’s perception of the Court: 62% of survey respondents agreed that recent U.S. Supreme Court decisions demonstrate that the Justices effectively split into parties, similar to Republicans and Democrats in Congress.  By contrast, only 38% of respondents thought that recent decisions demonstrate that the Court acts in a serious and constitutionally sound manner.

Results like these tend to trouble court watchers, both in terms of the general lack of civic knowledge and with respect to the public’s apparent belief that the Court is primarily political body.  These trends do require attention.  But a closer inspection suggests that there is no need to panic — at least not yet. Continue reading “Public interest in the Supreme Court is high, but knowledge is low. Should we worry?”

The quiet power behind Neil Gorsuch’s opening statement

Judge Neil Gorsuch’s opening statement in his Supreme Court confirmation hearings was a lovely ode to his family, upbringing, and the judges and lawyers who mentored him throughout his career.

Two passages in the 16-minute speech jumped out at me:

As a lawyer working for many years in the trial court trenches, I saw judges and juries — while human and imperfect — trying hard every day to decide fairly the cases I presented. As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world. Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands.

***

Of course, I make my share of mistakes. As my daughters never tire of reminding me, putting on a robe doesn’t make me any smarter. I’ll never forget my first day on the job. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying. But troublesome as it can be, the robe does mean something — and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.

I am not the only one to be struck by the phrase “honest black polyester,” but it certainly sits right with anyone who has worked with a judge day in and day out.  The unrelenting human-ness of judges, struggling to get it right and self-constrained by their own respect for the law, characterizes American courts far more than the know-it-all lawgiver or the robed politician.

Full C-SPAN video of Judge Gorsuch’s statement is here.

Dear Pennsylvania: a lottery is no way to pick a judge

The Philadelphia Inquirer reports on the results of last week’s ballot lottery for candidates seeking a position on Philadelphia’s Court of Common Pleas (its general jurisdiction trial court).  Forty-eight candidates entered the state primary for ten open positions, and their ballot order was determined by lottery.  The article nicely details the consequences of ballot position: candidates at the top have a tremendous strategic advantage in the primary election, regardless of their relevant experience, expertise, or skill.

Judicial elections were the standard for state courts until the mid-twentieth century, but their flaws have become increasingly exposed over time.  Poor or incompetent judges are elected, experienced jurists are removed in party sweeps, and public confidence falls as judges are treated as ordinary politicians.  Groups like Pennsylvanians for Modern Courts have been at the forefront of pushing for positive change in that state’s judicial selection methodology.

Contested elections can — and often do — produce fine judges.  And judges should be accountable to the public they serve, no matter how they are chosen.  But the surety of choosing a good judge by contested election increasingly feels like a lottery itself.

Gorsuch hearing preview: A moment where state ties trump partisanship

Supreme Court confirmation hearings for Neil Gorsuch begin today with the introduction of the nominee by his home state senators, Michael Bennett and Cory Gardner of Colorado.  It is a nice bipartisan tradition for the home-state senators to introduce all federal judicial nominees, presumably dating back to a time when the rest of the Senate was not assumed to be familiar with a candidate.  While almost all post-Robert Bork Supreme Court hearings have been contentious at times — usually unnecessarily so — it is a nod to decorum that the Senate still begins every hearing with such a welcoming gesture.

Home-state bipartisanship in judicial selection is not just a matter of courtesy. Senators from many states have developed bipartisan screening committees to help them recommend qualified candidates for lower federal judgeships to the President.  These screening committees review the qualifications of those interested in judgeships on federal district courts and circuit courts of appeal, and pass the names along to the home state senators, who then pass along names to the President.  While the President has ultimate discretion in choosing a nominee for any Article III judgeship, the use of screening committees effectively pre-ratifies the candidate, and helps ensure a much smoother confirmation process.  The Supreme Court represents a special circumstance where screening committees are not used, but we can hope that both President Trump and the Senate will continue to rely on them where appropriate in considering lower court nominees.

We will be following the Gorsuch hearings this week, with commentary to follow on how the hearings reflect and impact the current relationship between Congress and the courts.

 

 

Leib and Brudney on legislative underwriting of judicial decisions

Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

This is a very interesting piece, and I encourage you to read the whole thing.  Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches.  Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.

I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute.  A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.

The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free.  Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds.  It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.

The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures.  Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way.  This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.

 

The Supreme Court is looking for a court photographer

(As long as you stay out of the courtroom, of course.)

Responsibilities of the job include documenting “the continuing history of the Supreme Court as an institution as well as the people who work at the Court, the architecture of the Supreme Court Building, and the historic objects and artwork in the Court’s Collection.”

Details here.