SCOTUSblog’s Problem: It’s Not Incorporated [OK, I’m sure it is, but you get the point.]

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle when it expires next month.  We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

We thought it would be useful to write and explain the state of play regarding our credentialing.  SCOTUSblog is not now, and has never been, credentialed by the Supreme Court.  The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has not indicated when that review will conclude.

— An update on our press pass, Tom Goldstein, SCOTUSblog, this morning

I would joke about what happens to popular blogs when they start linking to blog posts by the likes of me on blogs like AB (talk about hoi polloi!)–or about SCOTUSblog’s need to incorporate so that it is an association of press citizens, or something (OK, I did do that in this post’s title)–but really, this isn’t funny.  At all.

Harry Reid, and also the Senate Judiciary Committee, should become involved the Supreme Court’s credentialing policy, which should not be left entirely to the Supreme Court to establish.

Just as it should not* be left entirely–okay, at all–to the Supreme Court to continue to retain complete secrecy on the individual justices’ votes on which 70 cases will be the ones among the roughly 10,000 each year to receive discretionary Court review by dint of a vote of at least four justices.  This would be true even absent the current Court’s conservative majority’s insistence that the First Amendment incorporates an all-but-unfettered right not just to speak to the public or to politicians (sometimes at a steep price) about government-related matters–albeit with a few interesting exceptions established by these very same five justices–but also an unfettered right of the public to hear the speech you want it to hear (but not the speech, to politicians, that you don’t want it to hear).  But it is all the truer in light of it.

In his January 1, 2012 annual State of the Court report, John Roberts hinted that federal statutes requiring federal judges and Supreme Court justices to file annual financial-disclosure information violate the doctrine of separation of powers.  Presumably, every statute requiring transparency on the part of the federal judiciary violates John Roberts’ separation-of-powers sensibilities.

What doesn’t violate those sensibilities, though, is the Court’s decades-long, wholesale usurpation of the authority that the Constitution expressly grants solely to Congress to determine federal courts’ “subject-matter” jurisdiction of federal courts to hear cases (subject only to Court review of the constitutionality of “jurisdictional” statutes).  The Roberts Court won’t interfere with the lower federal courts’ openly outlandish interpretations of Supreme Court-created jurisdictional and quasi-jurisdictional “doctrines” that effectively write subject-matter-jurisdiction policy–until there is a blue moon, after decades of willful blindness by the justices, when suddenly ExxonMobilSprint, or some other corporation represented by one or more members of the Washington-based Supreme Court specialty bar, asks the Court not to wait decades to reverse lower-court interpretation of a relatively new jurisdictional statute.  And then, as in the first two examples, does so only to the narrowest extent necessary, contortionist-like, to give that corporation a victory in that case.  (It will not do this in the last example, because the procedural statute at issue favors corporations; that’s the statute’s purpose.)

In fairness to Roberts, this see-no-evil-bald-violation-of-Congressional-subject-matter-jurisdiction-prerogative thing predates Roberts’ tenure on the Court, and–at least by appearances–the Democratic-appointed justices happily participate, and two of the current ones have done so since the early years of the Clinton administration. But Roberts, like his cohorts, sees no evil in it until some corporate interest is about to become its victim.

Or so it appears.  So to speak.


*Typo-corrected to insert the inadvertently omitted “not.”  Oops.

**Cross-posted at The Law of the Jungle.