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.
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Chief Justice Roberts releases 2019 Year-End Report

While you were dancing away the last hours of 2019, or perhaps just watching Ryan Seacrest, Chief Justice John Roberts was undertaking the time-honored tradition of releasing his Year-End Report on the Federal Judiciary under cover of darkness. This year’s theme was the judiciary’s importance in maintaining civic education, especially in an era in which fewer Americans are exposed to the brilliance of our Constitution.

I shall have more to say about this theme in a future post, but for the moment I will highlight a few of the more interesting statistics about the work of the federal courts over the past year:

  • Cases argued before the Supreme Court continued to decline, with only 73 arguments taking place during October Term 2018. Compare that to 175 arguments back in OT 1984.
  • In the federal district courts, civil case filings rose about 5%, and criminal filings rose about 6%.
  • Bankruptcy petitions are back on the rise after a one-year drop in 2018.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

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Why the Judicial Conference is asking for more judges

Last week, the Judicial Conference of the United States recommended that Congress add 73 permanent judgeships around the country. These are new judicial positions which would have to be filled, above and beyond the more than 120 existing federal judicial vacancies nationwide.

Political commentators have predictably seen this request through partisan lenses, noting (for example) that if all the requested judgeships were added and filled in short order, President Trump could “flip” the ideological composition of the Ninth Circuit. Given the current ugliness in Washington over proposals to pack the Supreme Court for partisan gain, it’s not entirely surprising that some would see the Judicial Conference’s request for more judges as having similarly political dimensions.

But the Conference must make its recommendation to Congress every two years, and that recommendation is based on hard evidence concerning the workload of the courts. Law360 has a good breakdown of the statistics behind the request, noting that nearly a third of the federal district courts have per-judge workloads that far exceed the recommended level.

It’s not clear if and when Congress will act on the request, although I certainly would not hold my breath on anything happening soon. In the meantime, the federal court system will continue to rely on internal strategies to manage its workload, including the use of senior judges and visiting judges in courts with otherwise crushing dockets.

Chief Justice releases 2017 Year-End Report

For law geeks with small children, the highlight of every New Years Eve is the quiet posting of Chief Justice Roberts’s Year-End Report on the federal courts website. It is a predictably comfortable document that invariably begins with a 200-year-old anecdote, proceeds through a single chosen topic in 10th-grade detail, and ends with a brief recitation of court statistics. In other words, it’s a little like Dave Barry’s annual year-end column, if that column were written by John Roberts instead of Dave Barry.

This year the Chief Justice’s focus is on court preparedness in the face of terror and natural disaster — an appropriate enough topic in light of last year’s hurricane season.  He also includes a short discussion of the courts’ forthcoming internal sexual harassment investigation.

Finally, some interesting statistical notes:

  • The Supreme Court’s docket fell again, with a little under three percent fewer filings and only 61 signed opinions.
  • Filings in the Courts of Appeal fell sixteen percent, but civil appeals were actually up one percent.
  • Filings in the federal district courts fell eight percent, and bankruptcy filings fell two percent.

I will probably have more to say on these figures in subsequent posts.  In the meantime, Happy New Year.

 

Attorneys file federal class action lawsuit over PACER fees

In April, attorneys for several watchdog groups filed a class action lawsuit in the U.S. District Court for the District of Columbia, arguing that the court’s Public Access to Court Electronic Records (PACER) system overcharged the public for access to court records starting in April 2010.

The lawsuit seeks “an unspecified amount of damages that ‘are found to exceed the amount authorized by law,’ as well as attorney fees.” Court documents and further details on the suit from the class action attorneys can be found here.

I was notified by email that I am a member of the plaintiff class, based on periodic PACER research I have conducted since 2010. And I have been critical of high PACER fees in the past, especially when PACER is used purely for academic research.  But this is a pretty silly lawsuit.  The class action attorneys will make a tidy sum from any settlement, and the actual affected members will likely get nothing of consequence.  I would much prefer to see the courts offer PACER as a free research service, or otherwise develop a sensible, tiered payment system.

 

 

Women’s groups in Israel challenge official divorce statistics

Earlier this week, Israel’s rabbinical courts released their annual statistics on divorces granted in the country, noting a very slight uptick over last year.  The statistics also identified the number of divorces granted to women whose husbands had left the country, as well as the number of “recalcitrant husbands” who were sanctioned by the courts for refusing to grant a divorce to their wives.

The latter statistics are relevant because marriage and divorce in Israel is governed by Jewish law (halacha), and divorces fall purely within the province of the country’s rabbinical courts. To obtain a divorce, both parties to the marriage must agree.  In practice, this often means that a woman who wants a divorce (for any reason, including spousal abuse) cannot obtain one without her husband’s consent.  Courts are authorized to sanction “recalcitrant husbands” who refuse to agree to a divorce, but this process typically takes years of court hearings.

Shortly after the statistics were released, several women’s groups in Israel questioned their validity.  In particular, the groups claimed that the number of sanctioned husbands badly underestimated the number of husbands nationwide who refused to grant a divorce.  The groups also questioned the statistics showing that 211 women were granted divorces in 2016 after their husbands fled the country, noting that the special court unit charged with administering such divorces would have granted almost one per workday–an impossibly high amount.

 

Federal Judicial Center unveils enhanced database of historical docket data

The Federal Judicial Center has updated and enhanced its interactive database on federal case filings, covering civil and criminal cases from 1970 to the present, appeals from 1971 to the present, and bankruptcy filings from 2008 to the present.  This is undoubtedly a valuable asset for court researchers.

Oral arguments in federal court continue to decline

The Legal Intelligencer reports that only 17.5% of federal appellate cases decided on their merits were disposed of after oral argument in 2015-16, the most recent statistical year available. Put another way, nearly five out of every six cases that are filed in the U.S. Courts of Appeal are decided without any sort of oral hearing. That is a significant drop: ten years ago, nearly 26% of cases received an oral hearing before disposition. Twenty years ago, the number was better than 40%.

The decline in hearings at the appellate level is, unfortunately, representative of a larger trend. A few years ago, Judge William Young (D. Mass.) and I examined the time that federal district judges spent on trials and courtroom hearings — a statistic we called “bench presence” — and found a year-over-year decline from FY2008 through FY2013. By 2013, federal district judges — our trial judges! — reported spending about only 2 hours a day on average in the courtroom.

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