Friday, January 22, 2016

Symposium on "Invisible Justices"

By Eric Segall

On February 11, the Georgia State University Law Review is hosting a comprehensive symposium on Supreme Court transparency. The participants will debate cameras in the Court, recusal practices, ethics requirements, anonymous certiorari votes, and the absence of any rules governing the Justices' papers. They will also discuss whether Congress can and should interfere in these issues. Here is a link to the conference.

Members of the judiciary who will be participating include Justice Willet of the Texas Supreme Court, Justice Nahmias of the Georgia Supreme Court, Judge Posner of the 7th Circuit (via Skype) and Judge Dillard of the Georgia Court of Appeals. The media will be represented by Adam Liptak of the New York Times, Robert Barnes of the Washington Post and Dahlia Lithwick of SLATE. Academics include, in addition to yours truly, Erwin Chemerinsky, Eugene Volokh, Vik Amar, Michael Gerhardt, Sonja West, Nancy Marder, RonNell Anderson Jones, Lauren Sudell Lucas, and Louis Virelli.

There will be significant disagreements among the participants on all of the transparency issues. C-Span is considering covering the event and Judge Dillard will be live tweeting the proceedings at @JudgeDillard. The event is open to the public but seating is limited.

I am writing the lead paper for the conference, which covers all of the topics listed above. Below I provide a brief summary of each topic.
A. Cameras
         Most state judicial systems as well as the Supreme Courts of Canada, Brazil, and the UK allow some form of televising or live streaming of their proceedings. The Supreme Court of the United States, of course, prohibits any and all photographic or video coverage of its oral arguments and decision announcements even though those sessions are already open to the public. No one will ever be able to see a video of Justice Kennedy announcing that gays and lesbians have equal rights to marriage or watch the Justices battle with the lawyers and themselves over affirmative action, abortion, voting rights and other issues of monumental importance.

The Justices claim that cameras in the Court might alter the nature of the arguments and lead to showboating and misrepresentation. They also argue that the written transcripts and audio recordings of the proceedings provide as much transparency as the public needs.

Justices Willett and Namhias will discuss their court’s experiences with live streaming and cameras while Professor Marder will argue against the use of cameras in the Supreme Court.
B. Ethics and Recusal
         The Justices of the United States Supreme Court are the only federal judges in the country not bound by a formal ethics code. Federal law prohibits lower court judges from being the keynote speakers at fund raising events, from accepting certain gifts, from hearing cases where they or their spouses have a financial interest, and from presiding over cases where they served as a lawyer in prior proceedings. In his 2011 year-end report, Justice Roberts told the country that the Justices use these rules to guide their behavior but that they are not binding on the Court. The result is that the Justices are free to engage in off-the-Court activities without any check and a recusal process that does not require any written response or review by other judges.

The panelists will discuss the presence of both liberal and conservative Justices at numerous political events hosted by a variety of organizations and recusal controversies where the Justices refused to withdraw from cases despite strong arguments that their participation was improper (as well as the Justices’ frequent recusal from cases without any written explanation). The participants will also examine current bills pending in Congress to address these matters and whether such efforts are needed and are constitutional.
C. The Writ of Certiorari
         There are currently no formal constraints on how the Justices decide which cases they will hear. Supreme Court Rule 10 sets forth "considerations governing" cert grants, but the Rule makes clear that the decision whether to grant or deny cert is committed to the Justices' discretion and that even the factors it lists neither control nor express the full measure of that discretion. The requirement that it takes four votes to hear a case isn’t formalized anywhere even though it appears to be well-accepted. Additionally, the Justices do not disclose their individual votes unless they dissent from the denial of the writ.

My paper argues that the American people have the right to know how Supreme Court Justices vote over time on the all-important certiorari questions. Other participants in the symposium will argue that disclosing which Justices voted to hear which cases would serve little public good and might actually be confusing to non-lawyers unfamiliar with the process. We will also discuss the role law clerks play in the certiorari process.
D. The Justices’ Papers
         There are no rules in place governing the taxpayer-funded official papers of the Justices. The result is that each Justice decides for himself or herself under what conditions and time frames their papers are released for study. Chief Justice’s Burger's papers are still not public, while Justice Souter’s papers are sealed for fifty years from the date of his retirement, and Justice Brennan allowed one law professor exclusive access to his papers for almost twenty years. Justice White and his clerks actually shredded many of his papers, including some related to the landmark Miranda case.

My paper argues that the American people deserve better and, if the Justices won’t adopt rules themselves, Congress should pass a law similar to the Presidential Records Act which governs the President’s and Vice-President’s papers. Others will argue that the Justices’ papers belong to them and should not be subject to formal regulation.

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