What should we expect when Justices Alito and Kagan testify before Congress this week?

Political theater, to be sure — but of the potentially useful variety.

U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.

The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.

Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.

The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.

To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.

Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.

Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.

 

 

The PACER class action and the problem of court funding

Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?

What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.

I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.

Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.

I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”

Shutdown starting to affect federal court operations

Although the federal court system managed to find sufficient “no year” funding to stay open one more week (until January 18), the ongoing federal government shutdown has begun to affect the system’s daily operations. Several district courts are reportedly staying some civil cases, especially those involving the U. S. government as a party. Courts are also cutting back on operational spending such as travel, supplies, and new equipment.

All court employees are continuing to receive full pay as of now, but if the shutdown continues beyond the 18th, non-essential employees would be furloughed and essential employees will continue to work without a paycheck. In small district courts like the Northern District of Iowa, staffing is already sufficiently thin that all employees would be considered essential even if funds were to run out.

As bad as this news is for the courts, it dramatically illustrates the importance and wisdom of the AO’s internal budgeting operations. As I have discussed elsewhere, it was not until the late 1930s that the federal court system obtained control over its own budget. Even though the courts cannot control how much money they receive from Congress, the ability to manage that money with forethought is exactly why they have been able to weather the shutdown (at least for now) while other federal government offices have closed or reduced operations.

Consider, for example, the dire situation at the Justice Department, where the Antitrust and Civil Divisions already have reportedly furloughed more than half of their staffs. As a Bloomberg story explains:

A continued shutdown could seriously hamper some of the civil division’s broad and crucial mandates that range from ensuring healthy market competition and weeding out Medicare fraud to defending the U.S. in lawsuits and recouping money for the Treasury. The effect could then spill over into the department’s criminal division and federal courts, a scenario that could jeopardize law enforcement nationwide.

Not good news. Not good at all.

 

The coming impact of the shutdown on the federal courts

The United States Courts will run out of funding this coming Friday, January 11. If the federal government is not funded and operating by that date, case processing will be immediately affected. While the likely impact will vary from district to district, it is certain that civil cases will suffer first, with trials and hearings being postponed as the courts dedicate their essential staff to criminal proceedings. Bloomberg Law has a good look at how the courts are handling the situation.

We are already starting to see some negative effects on civil cases in certain districts. Should the shutdown linger, one would expect to see existing civil cases settle at higher rates, and future cases filed either in state courts or in private arbitration settings. None of this, of course, is good business for the federal court system. Let’s hope there is a resolution soon.

 

Federal courts will still operate during shutdown

The United States Courts will use court fees and reserve resources to operate during the current government shutdown. The Courts can continue to operate for about three weeks, until January 11, 2019.

West Virginia Supreme Court supports legislative oversight of its budget

Earlier this week, members of the West Virginia Supreme Court voted to support a state constitutional amendment that would confer greater legislative oversight of the court’s budget. The decision comes in the wake of a series of spending scandals that rocked the court and led to the impeachment trials of four of its members.

Amendment 2 would allow the legislature to reduce the Court’s budget by as much as 15 percent in a given year. It will go to the voters in November.

The amendment has been publicly supported by Justice Beth Walker, who was publicly reprimanded in lieu of impeachment earlier this month, and Chief Justice Margaret Workman, whose own impeachment trial was blocked this week by a specially seated Supreme Court on separation-of-powers grounds. The public support is a smart legitimacy-restoring move for both Walker and Workman, who have been accused of facilitating abuse the Court’s finances.

Federal judiciary issues $7.22B budget request for FY19

Representatives of the federal judiciary testified before the House Appropriations Subcommittee on Financial Services and General Government today, issuing a budget request for $7.22 billion for Fiscal Year 2019. The request reflects an overall increase of 3.2 percent to maintain current services and fund priority initiatives — including $95 million for cybersecurity.

Seven billion dollars is nothing to sneeze at, but it represents a tiny fraction of the overall national budget (currently proposed at $4.41 trillion for FY19). The requested judicial budget is one percent of the White House’s 2019 allocation for national defense alone. It is, in the end, a remarkably small amount of money to fund the operations of  an entire branch of government.

N.B. — in the link above, the U.S. Courts helpfully included a video of the entire hearing before the House Appropriations Subcommittee. Remarkably, this act of transparency did not hopelessly compromise the integrity of the federal judiciary. It’s time to bring similar video technology into the courtroom.