Congress – Page 4 – The Interdependent Third Branch

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?”

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.

Updates on cameras in the courtroom

This has been a busy week for policies governing the use of courtroom cameras.

Senators Charles Grassley (R-IA) and Dick Durbin (D-IN) introduced S.643, which I have seen alternately referred to as the Cameras in the Courtroom Act of 2017 or the Sunshine in the Courtroom Act of 2017. The Act would require open proceedings in the United States Supreme Court to be televised. Similar legislation has already been introduced in the House. Variations of this Act have been introduced for many years, without success.
Several media outlets declared this week “Sunshine Week,” leading to editorials calling for allowing cameras into both state and federal courtrooms.
On its own volition, the Third Circuit Court of Appeals has started posting video of its oral arguments online. The always terrific Howard Bashman has the details in a new column for the Legal Intelligencer. The Third Circuit’s press release, which provides more context for its decision to make videos available, is here.

The numbers supporting the push for more federal judges

On Tuesday, the Judicial Conference of the United States agreed to recommend to Congress to create 57 new federal judgeships — 5 in the circuit courts and 52 in the district courts. The Conference further recommended that eight temporary or part-time district judgeships be converted to permanent status.

In its press release, the Conference emphasized the growth of the federal courts’ overall docket since 1990, when the last comprehensive judgeship bill was enacted. In that quarter-century plus, district court filings have grown 38 percent (with nearly equal growth in criminal and civil filings), and appellate courts have grown by 40 percent.

But the recommendations are more narrowly tailored than a simply 40 percent boost in judges nationwide. Only one of the thirteen appellate courts (the Ninth) is a suggested recipient of more judges, and only 27 of the 94 district courts are deemed to need new judgeships.

An examination of some of these targeted districts, and why it matters, after the jump.

Continue reading “The numbers supporting the push for more federal judges”

Could the Ninth Circuit rule on its own split?

U.S. Senator Jeff Flake (R-AZ) has introduced a bill (one of four currently in Congress) to split the Ninth Circuit Court of Appeals into two circuit courts. Apparently in response to reports that Ninth Circuit judges opposed the bill, Senator Flake asked the Ninth Circuit Executive for clarification on the court’s ability to rule fairly if the legislation were adopted and subsequently challenged. This week, Cathy Catterson, the Circuit Executive of the Ninth Circuit Court of Appeals, responded with an unqualified yes.

Given that bills to split the Ninth Circuit have been introduced many times since 1941, and have never gained serious traction, it is hard to see this as anything more than political posturing. But the regular recurrence of the proposal again illustrates the deep interdependence of the federal courts. Indeed, circuit reorganization is literally an existential issue, affecting active judgeships, resources, case assignments, precedent, and internal court dynamics. The judges naturally have an interest in the outcome, but they lack any direct say in it.

So let’s play out the hypothetical. Could the Ninth Circuit judges rule on the reorganization of their own court? And what would that look like? Continue reading “Could the Ninth Circuit rule on its own split?”

Interdependence Classics: Deanelle Reece Tacha, Independence of the Judiciary for the Third Century

This is the first in a series of occasional posts, highlighting scholarship and writings on the relationship between the court system and its external environment.

Tenth Circuit Judge Deanelle Reece Tacha’s 1995 article, Independence of the Judiciary in the Third Century, offers a short and engaging summary of the dependency issues that the federal courts faced at the end of the twentieth century. Much of her description and analysis is equally relevant today.

Judge Tacha notes from the outset that “[e]xamining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense.” It is natural, and in a sense traditional, to think of independence in terms of tenure protection. But while life tenure protects individual judges from the vagaries of the political climate, it does not protect the judiciary as a whole from resource-related strains.

Continue reading “Interdependence Classics: Deanelle Reece Tacha, Independence of the Judiciary for the Third Century”