The Supreme Court has long been criticized for its unwillingness to televise, or even record, its proceedings. But debate about transparency at the nation’s highest court should extend far beyond the issue of television cameras. Citizens deserve transparency from the court about how it decides which cases to hear, how justices decide whether to recuse themselves from pending cases, and how the justices’ court-related personal papers are treated after they retire.
The Supreme Court receives more than 7,000* requests a year to overturn lower-court decisions and grants only 70 to 80 of those petitions (it takes four votes to hear a case). Deciding which cases to hear is an enormously important aspect of a justice’s job. Yet the Supreme Court does not disclose which justices decide whether a case is worthy of its attention. In fact, there isn’t even an official record of the votes.
— What Are the Supreme Court Justices Hiding?, Eric J. Segall, Los Angeles Times, yesterday
Okay, obviously I’ve died and gone to heaven, because in the earthbound world, no one–at least to my knowledge–other than me has written publicly about this. I’ve written repeatedly about it here at AB, most recently here and, earlier, in more depth. But no one else seemed to care. No one who matters, anyway. I would have died of shock this morning when I read that op-ed piece, were it not that I was, unbeknownst to me, already in heaven, even though I’ve never even attended a government meeting in the town of Greece, NY.
Segall is a law professor at Georgia State University. He also is the author of a book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. But y’all already knew that the Supreme Court is not a court and that its justices are not judges, because you religiously read my AB posts about the Court. Even though my posts aren’t part of the government-meeting opening proceedings in the town of Greece, and anyway you, like me, don’t live anywhere near that town.
Segall’s advantage over me is that he was able to ask a retired justice, John Paul Stevens, why the votes on “cert. petitions–you know what cert. petitions are, because you read my AB posts–aren’t public. Segall reports that Stevens, when asked this, “paused and then said that, in his 35 years on the court, the issue of publicly disclosing such votes had “never come up, so he had never thought about the question.”
I began posting at AB in the spring of 2010, right around the time that Stevens announced his plans to retire at the end of that Court term in June of that year. But I’m not sure my writings on AB would qualify as “coming up” anyway.
So, what does? I suggested recently that Congress (by which I meant, liberal members of the Senate Judiciary Committee) should propose legislation to require a formal public record of the votes on every petition for certiorari, and as a prerequisite, require an actual formal vote on every petition for certiorari. (I don’t think this would qualify as a revenue measure, so the bill could originate in the Senate. I could be wrong, though, since it would be a mandate.)
Segall says Stevens’ “response says a lot about how the justices take for granted their secrets and the court’s lack of transparency.” Yeah. I call it an entitlement, and it needs to be fixed. Segall goes on to report:
After reflecting on the question, Stevens noted that the court shouldn’t continue a practice simply because ‘it’s always been done that way,’ but he also worried that if certiorari votes were disclosed, the public would assume that a justice’s vote to hear a case indicated how he or she would rule on the merits of that case.
“Confusion about what the votes mean,” Segall comments, “is not, however, a justification for keeping them secret from the American people.” Oh, I dunno. When an extremely powerful government institution is allowed to make it’s own rules, absolutely unfettered, to suit its members’ personal needs, confusion about what the votes mean sounds like as good a justification as any.
So, apparently, does deliberate obfuscation about which justices vote to give which corporation represented by which Supreme Court Specialist, or (carte blanche) which state attorney general’s office, access to Supreme Court review, and which justices vote to give no one else access. Except the Pacific Legal Foundation’s clients.
I, for one, sure would be interested to know which justices refused, for decades, to hear cases about Court-fabricated “jurisdictional” and “quasi-jurisdictional” bars to access to federal court to assert a violation of a constitutional right–and then voted to address exactly those issues, at the behest of ExxonMobil and Sprint Communications, narrowing the respective Court-fabricated “doctrines” exactly to the extent necessary to allow them and those nearly identically situated access to federal court, but no one else.
It’s not like, once they agreed to hear those corporations’ cases, they didn’t note in their unanimous opinions that these “doctrines” have metastasized outlandishly in the lower federal trial and appellate courts; they did. They said that, in both the ExxonMobil opinion and in the Sprint opinion. It’s just that no major corporation had asked them to address these cancers before. But in both instances, the cancer is not full in remission. Further treatment will have to await a cert. petition by Chevron or Verizon.
Not incidentally, both of these doctrines pretty baldly violate the doctrine of separation of powers, as I said in a recent post. And the First Amendment petition clause. Maybe Chevron’s and Verizon’s Supreme Court Specialist will point that out. Decades from now. Until then, only parties challenging a section of the ACA will have access to federal court as a matter of constitutional right and federal-court-jurisdiction statutes that say they apply to, well, everyone. The justices are protecting are freedom. And they violated ExxonMobil’s and Sprint’s.
Segall says the current intense level of secrecy at the court can’t be justified. He’s right. But what difference does that make? None, best as I can tell.
Another issue that apparently never comes up at the Court is the ridiculously and, for a good many people, prohibitively expensive cert.-petition process. The Court requires an expenditure of roughly $5,000-$7,000, paid to one of two or three private printing companies that have a cartel, for the (very) special printing of an original and 39 copies of each cert. petition, plus three for each opposing party. This to play the lottery for the perhaps three slots annually that are not allocated for petitions filed but government entities or government-employees-as-government-actors; petitions bearing the name of at least one Supreme Court Specialist on its cover; or petitions filed by some culture warrior and represented by a lawyer at one of the four or five pro bono rightwing Legal Foundation law firms.
Much better to spend that $5,000-$7,000 on state lottery tickets. Or at a casino. Which the Supreme Court most definitely is not.
*Most reports I’ve read in the last several years list the number at approximately 9,000 annually, and one recent report said the number is now up to 10,000. That includes petitions filed with a court-approved fee waiver available only to indigents, and the special printing and 30 of the 40 copies also are waived. But, with the exception of the occasional death penalty case and high-profile-issue Fourth Amendment case, in which big-name counsel is serving pro bono, it is big news when one of these is granted, always during a blue moon/solar eclipse/meteorite shower event.