Tag: judicial reputation

Supreme Court leak investigation ends with no culprit identified

Portico_-US_Supreme_Court_Building

The full statement from the Court, with the Marshal’s report and an additional statement from Michael Chertoff (as an independent analyst for the Court), can be found here. The key takeaway: “the [Marshal’s] team has to date been unable to identify a person responsible [for the leak] by a preponderance of the evidence.”

Preponderance of the evidence is, of course, the lowest standard of proof, equivalent to a likelihood of just over 50 percent. The failure of the investigation to identify any specific person under the preponderance standard is a clear signal that the Court does not ever expect to find the perpetrator.

This meek result is almost as stunning as the leak itself. And it carries several important consequences:

    • The Supreme Court’s reputation takes another hit. Leave aside the cynical partisan attacks based on one or two case outcomes. The Court itself has too many self-inflicted wounds in recent years: its refusal to adopt a Code of Ethics, its refusal to broadcast video of its arguments, and so on. Increasingly, the Supreme Court looks like a 19th century institution that has been uncomfortably transported to the 21st century. The failure to find the source of the leak makes the entire institution look inept.
    • Other court systems will suffer reputational fallout as well. Most people do not carefully distinguish between the Supreme Court and other courts or court systems in their daily lives.  Just as a strong reputation for the apex court will have benefits for other courts downstream, a reputational blow to the nation’s highest court will have the public thinking a bit more dismally about court systems in their own localities as well.
    • The Supreme Court will necessarily be a less open place to work. The Marshal’s report recommended–and former Secretary Chertoff endorsed–a number of measures to assure that a leak like this does not happen again. Many of these recommendations involving restricting access to draft opinions and other key documents, and instituting greater confidentiality measures. Fewer people will see drafts, and fewer opportunities will be available for reflection. There will still be prestige in clerking or otherwise staffing at the Supreme Court, but one has to wonder whether some qualified candidates will pass on the opportunity if it means giving up one’s cell phone when walking into the building and knowing that someone is always looking over your shoulder.
    • The Court will have to contend with an internal culture of distrust, at least for the foreseeable future. Just as potential law clerks and staff will bristle at being watched more closely, the Justices themselves will ask whether it’s worth bringing in so many unproven people for a year or two. The increased security will also necessarily make it harder for Justices to hammer out issues among themselves, whether directly or through law clerks as intermediaries.
    • The Court is likely to become even more resistant to sensible transparency proposals. As this blog has routinely documented, both legislators and the general public have put forward a variety of proposals to make the Supreme Court’s work more transparent and accessible. These proposals include better recusal practices and livestreaming oral arguments. But now that the Court is feeling on the defensive, it seems highly unlikely that it will voluntarily accede to transparency measures. This doesn’t mean that transparency measures are not coming eventually–I am confident that they are–but only that the Court will try to delay introducing them until it feels overwhelming pressure to do so.

Indiana judges involved in late-night White Castle shooting are suspended without pay

The strange saga of three Indiana judges involved in a shooting outside an Indianapolis White Castle last May has come to an end, at least for now. On Tuesday, the Indiana Supreme Court issued an opinion suspending Judges Andrew Adams, Bradley Jacobs, and Sabrina Bell without pay. The court concluded that Adams and Jacobs had engaged in judicial misconduct “by becoming involved in a physical altercation which Judge Adams was criminally charged and convicted,” and that all three judges engaged in judicial misconduct “by appearing in public in an intoxicated state and acting in an injudicious manner.” (Bell apparently gave an obscene gesture to the judges’ assailants, and Adams got involved in a physical fight in which Adams and Jacobs were seriously shot — more details here and here.)

The story has been worth following, and not only because state judges were shot point-blank in a fast food parking lot. The judges’ drunken and disorderly behavior has brought significant reputational harm to the rest of the state judiciary. After all, they were at a state judicial conference when this drunken encounter took place. This situation is far outside the normal range of damage control for most court public information officers.

And then there is the organizational harm in the form of increased workload for the judges’ coworkers. Jacobs and Bell received a 30-day suspension, and Adams 60 days (some of which has already been served). Someone has to pick up the slack with those judges out, and the courts cannot simply hire new staff to handle the dockets. As it is, the county courts in which the judges work are asking senior judges to take up most of the pending cases until the suspended judges return. A sensible use of resources, to be sure, but it still comes with internal costs.

For their part, the suspended judges appeared contrite. I am sure the entire experience for them has been harrowing, humbling, and literally painful.

The Importance of Being Chief Justice

I am delighted to present our first guest post, from my colleague Lawrence Friedman.

Successful lawyers excel at framing arguments. And for no lawyer in the United States is this skill more important than Chief Justice John Roberts. All of the justices of the Supreme Court seek to frame issues in ways that makes the results they reach seem inevitable. But only the chief justice speaks with the authority of his office outside the confines of the Court’s written opinions, opportunities that he seeks to maximize to ensure all of us that, regardless of how they rule in particular cases, the federal courts are just going about their business.

Consider two recent examples. The first is the chief justice’s response to President Trump’s belief that judges rule against his administration on the basis of politics. The chief justice would have none of it. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In each of these three sentences, Roberts essentially made the same point: federal judges are independent of politics and treat all who come before them equally. Note that Roberts did not dispute that federal judicial appointment process is political. Rather, he framed the issue in terms of what judges do after that process has ended.

The second example comes from the Chief Justice’s 2018 Year-End Report on the Federal Judiciary. This annual update on the workload of the federal courts typically addresses a recent issue of note to the federal court system. All government reports should be so readable.

This year, the Chief Justice begins by recounting Justice Louis Brandeis’s effort, in 1928, to draft a dissent in Olmstead v. United States—an opinion that foreshadowed a doctrinal change nearly four decades later to the judicial understanding of the Fourth Amendment’s privacy protections.

The Brandeis story captures the way in which the courts work – by reasoning their way to particular conclusions – and the nature of doctrinal change over time. And the story highlights the importance of judicial law clerks. Clerks are recently-graduated law students who assist the federal judiciary at all levels in resolving cases by providing research and drafting assistance.

But the story is not just about the importance of this resource to the judiciary. It also frames the Chief Justice’s report on the efforts of the Federal Judiciary Workplace Conduct Working Group to determine the changes needed to judicial conduct codes to ensure that they adequately reflect concerns for confidentiality, mechanisms for reporting misconduct, and processes for investigating complaints.

As written, the report achieves its purpose. Members of Congress and the general public who take the time to read it are likely to be satisfied with the judiciary’s management of conduct issues and conclude there is no need for monitoring from outside. The judiciary, in other words, can take care of itself.

The point here is that, unlike his colleagues, Chief Justice Roberts must always keep an eye on the federal judiciary’s institutional reputation. The independence of the third branch is more fragile than that of the other departments of the federal government. The courts are possessed, as Alexander Hamilton famously put it, of neither the purse nor the sword. Congress, for example, controls not just the judiciary’s budget, but both the number of judges at every level and their jurisdiction.

We live in a time when the President of the United States regularly belittles the institutions of democracy, a time when serious proposals are being floated in the new House of Representatives to expand the number of Supreme Court justices to counter the perceived effect of recent appointments. Given his recent statements, the Chief Justice appears to be acutely aware that the federal judiciary’s independence, and popular respect for its rulings, turns on the extent to which the people believe that judges, once appointed, have no side to take in particular cases, and can keep their own house clean. If the pitched battles over Brett Kavanaugh’s appointment and partisan gerrymandering are any guide to the future, the chief has his work cut out for him.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.