How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.

Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?

A guest post by Lawrence Friedman

In his recent essay, The cravenness of Democratic “Court reform” proposals, Jordan Singer responds to the left-leaning critics of the Supreme Court term just ended who have lamented the results in cases on choice, immigration and employment discrimination—not because the Court, led by Chief Justice John Roberts, failed to reach the results these critics support, but because it did. Democratic pollster Mark Mellman, for example, concludes that Roberts, “by refusing to inflame passions further,” may have stemmed “the tide and accomplish[ed] the coveted goal of his GOP critics—preserving the Court’s current conservative majority.” And law professors Kent Greenfield and Adam Winkler prophecy “the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.”

As Singer explains, these critiques reveal a Democratic goal since the failed Merrick Garland nomination in 2016: “to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself.” The restructuring plans have taken many forms, from imposing term limits on Supreme Court justices to expanding the number of justices who sit on the high court. These reform efforts turn on the belief that, since McConnell and the Republicans refused even to consider Garland, the Court’s legitimacy has suffered—with decisionmaking in controversial cases compounding the problem. The argument for Court reform falters, however, in the face of outcomes that tend to match the views of a majority of Americans – as they did this term in cases concerning choice, immigration and employment discrimination, in all of which Chief Justice Roberts either wrote or sided with the majority.

Professing concerns about the legitimacy of the Court’s decisonmaking is a broad brush with which to paint, and such concerns tend to be overblown: an institution that has survived decisions in cases like Brown v. Board of Education, Bush v. Gore, and District of Columbia v. Heller is not likely to be cast aside by the American people any time soon. Still, there is a tendency among the Court’s current membership that should be cause for genuine concern: the near-abandonment in cases involving the structural constitution and the separation of powers of any sense of judicial restraint. Continue reading “Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?”

The cravenness of Democratic “Court reform” proposals

The Supreme Court is doing its job and winning public support. Some Democrats are despondent.

Last week, The Hill published an op-ed by by Democratic pollster Mark Mellman, lamenting the Supreme Court’s recent decisions on abortion rights, immigration, and workplace discrimination. Each of these cases resulted in what might be termed a liberal victory, in the sense that the outcome was in line with prevailing left-wing views in the United States. One might think of this as a cause for celebration among the Democratic establishment. But not for Mellman, who with a tinge of sadness concluded that “by refusing to inflame passions further, [Chief] Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.”

A second op-ed, also published in The Hill (on the same day, in fact!) took a more academic tone but made essentially the same point as Mellman. Law professors Kent Greenfield and Adam Winkler argued that the Chief Justice’s “moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats the pack the Supreme Court with justices.” 

Both articles expose the long game the Democrats have been playing with the Supreme Court since the failed Merrick Garland nomination in 2016. It is a game to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself. And it is a game that has been undermined by the Court’s own decency and independence.
Continue reading “The cravenness of Democratic “Court reform” proposals”

A renewed effort to create regional judicial elections in Pennsylvania

Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:

Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.

He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.

I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”

Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Continue reading “Making sense of the recent Congressional testimony on courts and technology”

An interesting overview of the Japanese judiciary

I am no expert in the Japanese legal system, but I was intrigued by this article (in translation, from Nippon.com) which sets out some of the history and mechanics of the country’s judicial system. In particular, I was struck by how strongly the modern judiciary has been influenced by American occupation after World War II, both positively (adoption of the political question doctrine, overt commitment to judicial independence) and less positively (e.g., direct American interference in high profile cases in the immediate postwar years). I was similarly struck by the Japan’s embrace of bureaucratic approach to judging that is common in civil law systems across Europe and Latin America.

A good, relatively short read.

 

Israeli Supreme Court Justice receives death threat

Israeli Supreme Court Justice Anat Baron has been assigned additional security detail after receiving a death threat in the mail over the weekend. The letter apparently made veiled reference to Justice Baron’s son, who was killed by a suicide bomber in 2003.

This is grotesque and illegal behavior, and was immediately condemned by Israeli leaders including Prime Minister Binyamin Netanyahu. But Netanyahu himself has been accused of inciting this type of behavior, given his ongoing verbal attacks on the judiciary as he fights for his political life. The parallels to President Trump’s assaults on American judges are hard to ignore.

To be clear, neither Netanyahu nor Trump can possibly be said to wish physical harm to judges with whom they disagree. But rhetoric matters, and when politicians of any stripe wage war on the judiciary as part of their partisan battle plan, they do bear some responsibility for the collateral damage, both to judges’ reputations or (worse) to their physical well-being.

A brief history of New Jersey Supreme Court appointments

The New Jersey Globe has put together a useful series of articles on gubernatorial appointments to the state supreme court since 1947. Garden Staters and those interested in the court’s history (and its political dimensions) should take notice.

Alfred Driscoll’s First Seven Picks

The Meyner Court

The Cahill Court

The Byrne Court

The Kean Court

The Whitman Court

The McGreevy and Corzine Courts

The Christie Court

 

Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases

A guest post by Lawrence Friedman

In Republican National Committee v. Democratic National Committee, the U.S. Supreme Court ruled that absentee ballots in Wisconsin had to be postmarked by election day or earlier, which meant that many citizens would have to brave the polls and risk exposure to the novel coronavirus in order to vote. A New York Times story subsequently observed that the per curiam decision “was in keeping with a broader Republican approach that puts more weight on protecting against potential fraud — vanishingly rare in American elections — than the right to vote, with limited regard for the added burdens of the pandemic.”

This view aligns with that of the critics who note that the results in many of the Court’s recent voting rights decisions tend as a practical matter to inure to the benefit of the Republican Party. Indeed, a central question raised by the Court’s rulings in this area is whether the prevailing majority in these cases – Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – is motivated solely by partisanship. Writing in The Atlantic about the decision in the Wisconsin case, for example, Garret Epps asked whether the majority was “guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.”

There is an argument to be made that there is a principle at work in election cases—that the Court’s rulings reflect neither the majority’s embrace of dubious theories about voter fraud nor a bare desire to harm Democrats but, rather, a commitment to resolving disputes about who gets to vote on neutral grounds. Indeed, the Roberts court’s voting rights decisions can be seen as expressions of the majority’s abiding interest in avoiding – seemingly at all costs – any judicial involvement in the way state governments run elections. This interest follows from the premise that, as the majority reads it, the constitution is pre-political: there are no Republicans and Democrats, only candidates; and the rules under which elections are run are, other than when they are expressly discriminatory on the basis of race, the purview of legislators. Continue reading “The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases”