Tag: transparency

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.

A roundup of interesting state court developments

Several interesting and important developments have taken place in state courts this past week. Among them:

  • The Chief Judge of the Hennepin County (Minnesota) District Court announced that the court has a backlog of 3,000 cases that must be resolved by 2023. Nearly 90 percent of those cases are criminal matters. Meanwhile, the COVID-19 pandemic has led to 89 percent of all court hearings being held remotely. 
  • New Hampshire has a new state court administrator. Dianne Martin was most recently the Chair of the state’s Public Utilities Commission, and has worked in and with the state colurt system for nearly twenty years.
  • And Idaho’s state court administrator has been named in a federal lawsuit filed by Courthouse News Service, alleging that the state’s practice of posting new case filings impermissibly delays public and media access to new case information. Courthouse News Service has filed similar lawsuits against other court administrators in the past, each time alleging that the court’s default position should be to provide immediate electronic access once a matter is filed.

A tentative settlement in the PACER fee lawsuit?

Reuters reports that a settlement is brewing in the class action lawsuit alleging that the federal judiciary overcharged users for PACER access. Terms of the deal were not disclosed, but after several years of litigation, including a trip to the Court of Appeals, it appears that the case may be coming to a private resolution in the next few months.

I shared thoughts on the PACER lawsuit, and the larger questions it poses for the court system, here.

Supreme Court to resume in-person arguments; live audio here to stay?

The Supreme Court has announced that it will resume in-person arguments starting in October. The number of people in the courtroom will be strictly limited.

The Court will apparently continue to provide live audio of the oral arguments, a welcome bit of transparency. In addition to giving the public immediate access to hearings, the audio feed has been paired with text and photos of the Justices to allow students to more fully appreciate the flow of oral argument. (Click here, then on the “Oral argument” button on the left, for an example from oyez.org.)

The return to in-person arguments raises one other question: will the Justices continue to ask questions one at a time (in order of seniority), as they did during the pandemic-mandated telephonic hearings? Or will they go back to interrupting each other (and counsel) every chance they get? 

India develops rules for live-streaming court proceedings

The E-Committee of the Supreme Court of India has developed a set of draft rules for live-streaming and recording court proceedings. The draft rules are open for public comment through June 30.

The draft rules exclude a number of case types, including many related to family law, gender-based violence, and cases which “in the opinion of the Bench may provoke enmity amongst communities likely to result in a breach of law and order.” Parties will also have a chance to object to livestreaming in advance.

Post-COVID, an expanded toolbox for the courts

What will court proceedings look like once the coronivirus pandemic has run its course and society reopens in earnest? Already, courthouses are reopening for jury trials and hearings — a critical step for transparency and due proces. But as Judge Jack Zouhary explains at the IAALS Blog, videoconferencing is not going away. Rather, the courts will likely use videoconferencing for appropriate proceedings — everything from status conferences to settlement discussions.

The expectation of continued videoconferencing is welcome, but it is just the beginning of a larger transformation. The ongoing ability to access the courts through Zoom raises important questions about recording hearings, public transparency, the use of video for purposes of judicial performance evaluation and appeal, and so on. Put differently, new challenges are on the horizon. In the meantime, we are witnessing the true birth of America’s twenty-first century court system.

Are Supreme Court amicus briefs posing a transparency problem?

That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.

Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.

Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.

Tillman on transparency of court records in Ireland

My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.

The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.

These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.

West Virginia governor will appoint the judge who will rule in his case

A strange development in West Virginia. State judge Charles King passed away last month, and Governor Jim Justice is charged with appointing his replacement. Interviews will be taking place this week. At the time of his death, Judge King was presiding over a lawsuit in which the Governor was the defendant. The new appointee will take the reins of that suit. Put differently, the Governor will literally be picking the judge in his own case.

While it is common for governors to temporarily fill vacant seats on the bench so that the courts remain at full strength, this situation is plainly awkward. It is all the more so because of the efforts in the mid-2000s of Massey Coal Company to heavily finance the election of Brent Benjamin to the state supreme court; Benjamin would later cast the deciding vote in Massey’s favor in a major case pending before that court.

Governor Justice must carry out his appointment responsibilities, but he would be well-served by including extra transparency in the process — for his sake, the new judge’s sake, and the sake of long-term public confidence in the state judiciary.

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.