Monday, May 10, 2021

Reforming the Court: Five Non-Partisan and Much Needed Proposals

 By Eric Segall

The thirty-six member Supreme Court reform commission is unlikely to suggest, much less try to implement, the important goals of ending life tenure or altering the number of Justices on the Court to provide more partisan balance. Both changes have some support among lawyers, law professors, and politicians but neither is politically viable at this time. There are, however, a number of other recommendations the commission should discuss, debate, and then propose. 

Although it is at best unclear whether the commission is supposed to make recommendations, nevertheless, as Founder Edmund Randolph said when describing the 1787 constitutional convention, which was supposed to end with amendments to the Articles of Confederation but resulted in an entire new Constitution: "There are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it." 

The Supreme Court reform commissions should take heed and put forth the following proposals in no uncertain terms. All of these suggestions are completely non-partisan.

1) A Binding Ethics Code

There are comprehensive ethical rules governing the off-the-bench activities of all lower federal court judges. These congressionally enacted rules prohibit judges from engaging in political activity,  accepting certain gifts, and being the keynote speaker or guest of honor at dinners and receptions for political organizations.

Chief Justice Roberts has made it crystal clear that the Justices are not bound by these or any other ethical guidelines. He argued that no institution other than the Court itself can make binding rules for the Justices. The Justices have voluntarily agreed (by secret memoranda) to follow the financial disclosure and gift regulations in the rules, but the rest of the Code, including the parts about public appearances, are not binding on the Justices.

The high Court's decision not to be bound by the same rules governing all other lower court judges has led to a number of controversies. Justices Thomas, Gorsuch, and Alito regularly participate in numerous events for conservative organizations such as the Federalist Society, while Justices Breyer and Sotomayor have been featured speakers at the liberal American Constitutional Society (of which I am a member), obviously helping those organizations raise substantial funds (perhaps indirectly) for their many causes. Back in January 2007 and January 2008, Justices Scalia and Thomas attended meetings sponsored by Koch Industries at an expensive resort in Southern California. 

There may or may not be something improper about the Justices lending their credibility to these organizations with partisan agendas. But that doesn't mean there should be no binding ethics code on the Court. The most important judges in the land should work within written and public limits on their off-the-Court activities. Even if it would violate the separation of powers for Congress to require such a code, the Justices have the authority to promulgate public rules for themselves and come up with their own enforcement mechanisms. 

Over the years, numerous public interest organizations, including Fix the Court, have formally asked that the Court fully embrace the ethical rules binding on all other federal judges.  If anything, the code for the nine Justices should be more detailed with tougher ethical rules than those for lower court judges who number in the hundreds and whose influence and power are much less than that of the Justices. It is hard to imagine any objection to the Justices setting forth and abiding by a binding and publicly available written ethics code.

2) A Uniform Paper Retention Policy

There are no rules governing the taxpayer-funded official papers of the Justices. Each Justice decides for him or herself the conditions and time frames for when their papers may be released for public scrutiny and study. Justice Souter’s papers are embargoed until 2059, fifty years after his retirement. Justice White and his clerks actually shredded many of his papers, including some related to the landmark Miranda case. And former Chief Justice Warren Burger's papers are still unavailable even though he retired in 1986.

There are of course confidential pre-decisional and personnel documents that maybe should never see the light of the day, but that is also true for the President whose papers are governed by the Presidential Records Act. But right now, there are no rules of any kind governing important and publicly paid for internal Court documents. The Justices should not be allowed to keep these important records secret for so long after they retire. Because Congress funds the Court, it could almost certainly tie that money to a publicly announced and reasonable uniform policy enacted by the Justices to govern their papers.

Justice Thurgood Marshall's papers became available a mere two years after his retirement. The sky opened up rather than falling.

3) Publicizing the Votes on Cert Grants and Denials

One of the Justices' most important jobs is to decide which cases they will or will not here. Incredibly, there is almost nothing available to the public about this process. Even the rule that the votes of four Justices are necessary to hear a case is not formalized in a writing available to the public. To the best of my knowledge, there is no official record anywhere keeping track of the Justices' writ of certiorari votes and denials.

Historians, academics, law students, politicians, and the American people should know which Justices voted to hear or not hear the cases that come to the Court. Perhaps this information should come out at the end of the term, or maybe after each case is decided, or maybe even after each grant or denial. But the information should come out so we can have a complete accounting of how the Justices performed one of their most crucial tasks: setting the docket and deciding which cases are worthy of their effectively unreviewable (in constitutional law cases) attention.

4) Cameras in the Court

This is the transparency issue regarding the Court that has probably received the most attention. As I wrote on this blog a few years ago:

The oral arguments and decision days are already public events, C-Span is willing televise them at its own expense, and there are obviously many Americans who want to witness the proceedings. We normally have a strong presumption that open, government hearings will be, well, open.

In addition to the normal presumption of transparency, there are a myriad of cultural, educational, historical, and civic benefits to allowing cameras at the Supreme Court. The American people could watch lawyers and judges argue over our most controversial, divisive, and sometimes partisan issues, with mutual respect, civility and deference. Especially during these increasingly partisan times, the oral arguments could set an example of how public officials can disagree, sometimes vehemently, without undue rancor or personal attacks.

Our museums could display the Court’s most important arguments showing the Justices debating the issues and announcing the results. Students in elementary and secondary schools, colleges and law schools could gain improved insight and understanding about the Court and great historical issues like race relations, abortion, gun control, and voting rights by actually seeing the Justices perform their duties. Perhaps most importantly, when the Court hands down landmark decisions...millions of Americans could gather together in a moment of national pride (or anguish) and political engagement which would be markedly different from hearing the news second-hand from a few select journalists.

The arguments against allowing cameras have always been flimsy. They include concerns that the Justices and/or lawyers will grandstand for the cameras and that oral arguments will be deemed by the public more important than they actually are. But, of course, the Justices can easily handle any lawyer showboating and the possibility of the Justices themselves misbehaving is, well up to the Justices, and is no reason to deny the public the right to see open public hearings that a select few get to witness in person. By keeping these arguments off camera, the Justices are currently probably making them seem more important than they actually are. In any event, that should be for the public to decide.

The Justices have been live-streaming their audio for two terms now and it is clear that everyone is better off and, again, the sky has not fallen. It is far past time that our Supreme Court join most of the other highest courts in free countries around the globe and let the people see its already public oral arguments and decision announcements.

5. Recusal Standards

Without fair judges, there can be no rule of law. Although there are detailed statutory regulations for lower court judges, there is no binding recusal code for Supreme Court Justices. Elena Kagan was the Solicitor General of the United States when the Affordable Care Act was first litigated in the lower courts and her office was directly involved in the litigation defending the law. She did not work on that litigation but her top Deputy did. When the law came before the Supreme Court the first time, a non-party made a motion for Kagan to recuse, which she should have done as I outlined here. She made no response to the motion to recuse, which was summarily denied. The Justices rarely explain their recusal decisions.

The issue of recusal is complicated for its potential political abuse should a non-Justice panel or a subset of the Justices be allowed to review recusal decisions. But that danger is outweighed by the complete lack of accountability inherent in a court with no binding rules about when its judges will or will not sit on a case. One solution would be an independent commission consisting of senior federal judges with an even number of Republicans and Democrats who would review motions to recuse Supreme Court Justices. With an even number, before the commission could require (or suggest) a Justice recuse, there would have to be bi-partisan agreement.

Whatever the remedy, a world where each Justice decides for himself or herself whether to recuse, with little or no guidance for the public as to when recusal is required, should be intolerable. The most important judges in the land should be bound by more than their own personal choices on such an important requirement of the rule of law.

* * *

Supreme Court Justices, in normal times, do their work in a large marble palace on a hill and rarely come down to expose themselves unless they have a book to sell or they want to appear in a university, public interest, or even corporate setting. We do not see them doing their jobs, they are not bound by any ethics or recusal rules, we have no idea how they vote on whether to hear cases unless they dissent from a cert denial, and then only rarely, and their taxpayer-funded papers are often kept secret for 50 years or more. That is no way for a real court to act and, if the Justices do not cure some of these problems soon, Congress should do it for them by tying the Court's budget to agreeing to these changes.

7 comments:

Unknown said...

Your argument for cameras in the courtroom mischaracterizes the arguments made against it. The issue is less “grandstanding” by Justices but partisan individuals using official Court footage to take word out of context or to advance a partisan agenda; leaving the cameras out makes such efforts harder to pull off, helping to keep the Court more insulated from partisanship than it would otherwise be.

Additionally, in all the years I have heard the advocacy of cameras, I have never heard anyone put forward an account of exactly what problem the cameras would supposedly solve nor how they would do so. For example, despite your claims of “open government hearings”, literally nothing requires those hearings be visually open; otherwise, every criminal trial must be recorded and broadcast on television or the internet.

Meanwhile, people are able to go to courts to see lawyers and judges argue about issues, excluding pandemic-related restrictions aside.

Meanwhile, your third paragraph from your quote betrays your claims against grandstanding anyway. People’s behavior changes, and often not for the better, when they think “history might be watching”. While making such a recording for Re-enactment might be worthwhile, doing so when people’s lives are on the line, which is what judicial work ultimately is, the determination of who lives and who dies and who withers and who thrives, is to make a mockery of the importance judicial independence and the victims of such not-always-for-the-better changes.

Joe said...

As usual, disputed matters rather involve a single ("the") issue, and I have repeatedly seen it alleged that lawyers will grandstand.

I have regularly read on this subject and in fact the idea that video will be selectively edited to promote a partisan agenda is to my eye a minor argument made as compared to that. There have been some concern about the Media specifically taking soundbites and confusing the situation.

There is now audio and transcripts. If there is a concern for this selective use of video for bad purposes, editing using pictures or active icons of the justices and lawyers, can easily do it. Complete video if anything might help a bit in addressing this, including uninformed media video clips.

Hearings very well in various cases are supposed to be "visually" open though obviously everyone reading this including the professor is likely to understand this doesn't mean COMPLETELY. So every trial isn't open to public by stream. Though in the 21st Century, it sure is a general practice that public hearings are very well widely available, especially very important ones. This includes online methods of visual recording.

Since we are so far apart here, it is not surprising there is some confusion on what "exactly" is a benefit here. But, at least on this end, the value of visually watching things -- which has been cited by the advocates as compared to just listening to justices on the phone -- in general is helpful for human understanding. Note it wasn't that long ago that even audio wasn't readily available.

MOST "people" don't have a chance to travel to D.C. to watch justices. Or, other courts. THERE, however, there is wide availability, including state and foreign courts, of video. The judges there is less confused about "exactly" what value this is than some or maybe they are confused. Unknown.

If "history is watching" is a problem, we are in trouble (granted) since it already is. People are already watching in person (when that was possible) and the Media is there reporting. Likewise, there is audio for people to listen to and transcripts for people to read. We do that since net it is useful for government to be open. And, video will add to that overall.

I think video would be helpful but to be clear I don't think it will change things SO MUCH either. Improvements are useful even when they aren't some how so very essential. So, the arguments against it seem silly to me, partially since again so many courts (including leading state and foreign courts) already do it. This is more so when members of the Supreme Court aren't just hiding in their chambers but out there giving speeches, writing books and so forth.

Joe said...

A few comments on the specific proposals which I mostly support.

[1] I would not include making public votes on grants and denials, except perhaps to something like an execution. My concern here is to know the votes of the justices in specific written rulings. So, e.g., we have "shadow docket" rulings of some real substantive effect (with an opinion etc.) and justices retain their anonymity.

[It might be the case that the votes will be recorded by the Chief Justice for his own records as noted in accounts like "The Brethren" and maybe by others. So, the votes might eventually be released if the records have to be.]

One or more times it wasn't even clear who five were that made the majority. The rule is that you cannot assume consent -- a per curiam just means a majority decided. Someone might have silently dissented. I find that a dubious practice. Silence to me usually means consent.

[2] I'm dubious of some outside body determining recusals in some binding way. I agree with the argument that we should -- accept in limited cases involving privacy reasons (maybe) -- have brief statements on why they recuse (Breyer and Alito, e.g., repeatedly recuse for some financial conflict)

[3] I think a binding ethics rule for justices (which as the like to Roberts' 2011 report shows they surely don't take as perfectly fine) is a good idea. But, the problem would be enforcement. The justices might have some pressure to follow such a binding rule, perhaps. Will "violations" be public? Will they be referred to the House of Representatives? (the impeaching body)?

[4] It is starting to get a bit more attention, but I personally would like at the very least an official audio/transcript for opinion announcements. They are done since the Supreme Court seems to find them useful. Oyez.com provides them (except for during the COVID terms). As with headnotes, it can clearly be cited that opinion and dissent announcements are not binding. But, as with advisory remarks in writing and out loud in other courts of that nature, they retain education value.

hardreaders said...

(1/3)

I generally agree with Joe's take on the proposals as a whole. While none are particularly earth-shattering, and some raise implementation questions, any improvements should always be welcomed.

Specifically, w.r.t. cameras, again I agree that's probably one of the most incremental and modest proposals.

Ironies abound with that one too. For one, we already have cameras in state courts where a lot of the bigtime criminal action plays out. OJ is the classic example. These days it's Derek Chauvin. Moreover, the percentage of criminal cases that actually go to trial is in the low single digits, but the plea bargaining process has never been publicized, let alone televised.

Another possible irony is fixation with SCOTUS would seem to put the cart before the horse. SCOTUS is glamorous and high-profile of course, but I'd say the real bread and butter federal justice work gets done in the trial courts. The appeals courts are next in line after that. We already have cameras in CA9, one of the busiest circuits out there, with no apparent issues, but that's just a start. Obviously, no separation of powers concerns would stop Congress from requiring cameras in the lower courts either. Due process and/or confidentiality issues might arise from time to time, especially for trial courts, but those are hardly insurmountable. Again, state courts ("democracy labs") already proved it can be done.

The final irony is the Justices' apparent refusal to budge one inch on such a minor issue. You'd think it'd actually be in their best interest to give way on that one. They can then use that fairly mild concession (as opposed to a mild concussion!) to head off the remaining proposals, which arguably are more substantive and/or invasive. Some have made a similar argument about the TRIPS waiver, in that the pharma cos. would get a lot of good PR for agreeing, without actually having to give up much—at least when it comes to patents. Likewise, the NRA eventually came to its senses (sort of) on the bump stock ban and stopped opposing it. I just don't get what the Justices are thinking on this, especially when the live audio cat seems quite unlikely to return to its bag at this point. Maybe they view live audio as being the big concession itself.

Anyway, as Joe noted, the stakes would seem to be low, but as I see it, there should always be a strong presumption in favor of fulsome public access; in the 21st century, that definitely includes telecasts. Maybe that's not based on the literal 1A text, but at least its "principles" as such. And the stakes being low—compare to concerns that only manifest in the lower courts—if anything makes the presumption stronger; accordingly, the counterarguments must be very compelling to have any traction.

I again side with Joe and the OP that none of the counterarguments even rise to the level of being mildly persuasive. Supposed "grandstanding" by counsel is a good example of that. SCOTUS oral arguments is one of the most important and serious real-time legal events on the planet. Even then, each side only gets 30 minutes by default—much of which is eaten up by the Justices' own questions—and lawyers spend lots of time and effort preparing for it. And while I don't agree that it's always life or death, it certainly can be for some individual parties. Even if not, there can be megabucks at stake for corporate parties—both the amount in controversy and counsel's fees. The idea that anyone in that situation—counsel or the parties—would have an interest in grandstanding seems totally unrealistic. And if any grandstanding does somehow occur, like the OP notes, surely the Justices already have ample means of cracking down on that.

hardreaders said...

(2/3)

The life or death comment actually raises yet a further irony. As Joe pointed out, and the OP to some extent alluded to, when it comes to *real* life or death issues, many times we've been deprived of oral argument completely. That's because the Court has a habit of deciding COVID and death penalty cases without any briefing or argument whatsoever. Maybe it's just me, but I tend to think that is what makes a mockery of the very serious issues raised in those cases.

I'm also puzzled as to what alleged "mischaracterization" the OP committed. Clearly, it was just an omission of a quite distinct counterargument. That argument goes to the supposed extreme vulnerability of televised argument—but, as Joe noted, apparently not transcripts or even real-time audio—to exploitation of soundbites for partisan purposes. What purposes those are exactly is never spelled out with any detail.

Most likely, the omission was an innocent oversight. But there would also be good reason for deliberately ignoring it. That’s because it’s even weaker and more strained than the counterarguments that were discussed. As an initial matter, I note a very similar argument was raised in opposition to Eric “Qusay” TP’s deposition in the NY AG’s fraud case taking place before the election last year. Specifically, it was claimed that the AG, being a Democrat, would somehow conspire with the national party to elicit facts that were irrelevant and/or amenable to being taken out of context, for use in negative political ads. (Oddly, I don’t recall the folks concerned on Eric TP’s behalf having any similar worries about Judicial Watch’s rabid, and ultimately futile, quest to depose Hillary Clinton in a … FOIA case.)

In the deposition context, that argument *might* at least have a smidgen of surface appeal. For one, the parties are adversaries, so a taking party may have motivation to use a deposition to damage the other side politically. And by default, the taker has wide latitude in what questions can be asked. But of course, numerous mechanisms already exist for policing depositions far short of delaying them altogether. And in any event, that argument did not carry the day for Eric TP.

It makes even less sense when applied to SCOTUS oral argument. Obviously, the Justices are not parties, and the parties’ only “motivation”—such as it is—would be to address the Justices’ questions as thoroughly as possible. It’s also the Justices who control the questions, not the parties. But the biggest and most important difference is the questions have almost nothing to do with *facts*, and even if they do, it’s certainly not personal facts about the Justices. They’re usually questions of law, or if factual, then just about the record.

hardreaders said...

(3/3)

At the end of the day, I really think the issue comes down to elitism. It cuts across all the Justices too. The Court sees itself as superior—both to Congress and to other courts (lower federal and state). Congress may be ok with televising its proceedings, but SCOTUS sees itself as too good for that. Oral argument shouldn’t be treated as “mere entertainment” that might—God forbid—have to compete with every other viewing option. Likewise, some lower federal courts and even state supreme (!) courts broadcast their arguments, but those courts are inferior to SCOTUS (the latter on federal issues at least), so it wants to set itself apart. Requiring people to not only take time off in the *middle of a weekday morning*, but also travel to DC if from out of state and even camp out overnight for the most popular arguments definitely reinforces that superiority and prestige.

That brings me to a parting irony. Considering the previous paragraph, it’s clear that attending oral argument in person is almost entirely for the diehards, excepting maybe schoolkids on a field trip or undergrad/grad students who are local and/or have some free time. Even with audio streaming, anyone holding down a day job has to set aside time somehow during prime working hours. The streams are archived of course, but I imagine you’d have to be fairly curious to want to listen during off hours. So the concern as I see it is hardly that people will be jumping over themselves to distort and take out of context oral argument as it happens in real-time. Rather, I think if people are bothering to tune in, it’s because they’re already quite motivated and a niche audience. The real challenge would be getting regular folks to even pay attention!

Again, I’m not sure why so much debate needs to happen over what is or should be a relatively straightforward and penny ante issue. But here we are.

Joe said...

I am curious about enforcement of ethics rules for justices.

The OP leaves it open, including leaving it to the justices to find an enforcement mechanism. Well, that would be interesting, especially the "tougher" concept. If something is "binding," it should have some bite. Thus:

"judges who fail to abide by the Code risk judicial discipline (such as being temporarily barred from hearing new cases) or disqualification from an existing case"

https://fas.org/sgp/crs/misc/LSB10255.pdf

Anyway, the Presidential Commission on the Supreme Court of the United States now has a public comment page.

https://www.whitehouse.gov/pcscotus/public-comments/