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.