More on the Supreme Court’s opacity

Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.

As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.

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.

Continue reading “What is the right level of court system transparency?”

A dispiriting 230th birthday for the federal courts

On this day 230 years ago, President George Washington signed into law the Judiciary Act of 1789, which created our system of lower federal courts. The U.S. Constitution, ratified just a week earlier, limited its discussion of the judiciary to the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” Yet Congress wasted no time creating thirteen new federal district courts (each populated by a single district judge), and three federal circuit courts, whose judges would “ride circuit” and hear cases across multiple states.

It was not a given that lower federal courts would in fact come into existence, at least not right away. In the early days of the Republic, state courts were expected to handle most cases, and a placement on the state court bench, not the federal bench, would have been the object of desire for most judicial aspirants. But the growth of federal law after the Civil War, and especially in the twentieth century, expanded the size and importance of the federal docket and  helped transform the federal courts into key players in American law, politics, and society. Last year, the federal district courts began processing almost 283,000 new cases.

Congress did not have to create the federal court system. But having done so, it has an ongoing obligation to provide the courts with the resources necessary to ensure the proper administration of justice. That means adequate funding, adequate staffing, and adequate institutional support. Lately, however, Congress has fallen short on all three counts. Continue reading “A dispiriting 230th birthday for the federal courts”

Delaware to appeal holding that its judicial appointment process violates the Constitution

Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.

The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.

Judge Larsen on State Courts in a Federal System

Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.

The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.

Continue reading “Judge Larsen on State Courts in a Federal System”

Against the partisan labeling of Supreme Court Justices

My colleague Lawrence Friedman (an occasional contributor to this blog) has a very nice piece in The Hill today, explaining why labeling individual Supreme Court Justices as “liberal” or “conservative” is a mistake. A snippet:

Attaching such labels to the justices is a common and unfortunate fixture of our politically polarized era. To be sure, the conservative and liberal tags may be accurate to the extent that they characterize the results of a Supreme Court decision as more favorable to one or the other political camp. The labels serve to shorthand judicial decisions for people who desire to know the bottom line. Does the result favor my side or theirs?

But it does not follow that the justices should be characterized in the same way. The shorthand may be helpful to those readers or viewers seeking to absorb the implications of a Supreme Court decision. The problem is that these labels fail accurately to reflect both the role of the Supreme Court in our governmental scheme and the ways in which the justices approach the critical task of judicial review in our democracy.

I urge you to read the whole thing.

“Offended Observers” and Public Religious Displays: the Question of Standing

A guest post by Lawrence Friedman

That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.

Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.

Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.

But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”