What Are the Supreme Court Justices Hiding? A Lot.
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.
Gee, if their vote’s became public, it might mean they would have to address more cases or risk being found out for the illusion the “court” is. Having to take on such a load might mean they would need more “judges” but that would mean less ability to control the outcome.
So no, we don’t think making our activities public and thus lead by example in committing ourselves to the spirit of the founders ideals is a good thing because….(fill in the self serving excuse here).
I’ve never understood the calls for “more transparency” at the Supreme Court. Exactly what problems exist which require the transparency sought? Are those problems not addressable by other, less intrusive, means? The idea of an independent judiciary is to remove the courts from undue public pressure, be that pressure from the Members of the congress or from the President or from People in general, in order to maximize the likelihood of impartiality. Now, if One has evidence of a failure by Any particular Justice to remain impartial, a simple remedy exists: impeach Them; the constitution only permits Them tenure when conducted in accordance with “good behavior”. Additionally, the idea of impeaching Judges is not new; 14 Judges have been impeached in the history of the United States, including Samuel Chase, Associate Justice of the Supreme Court, and 3 Judges resigned instead of facing impeachment charges.
It would be one thing if such attempts were tried and failed; it is another to simply seek a new authority without even trying existing methods first.
PS: The typographical errors in this blog post do not help bolster the argument either.
What a bizarre rant. Setting aside that it is impossible to impeach even a lower-court judge who hasn’t been convicted of a serious crime; that impeachment and conviction is a political process; and that there is no way for the public to learn of Court-related misconduct nor even request, much less gain, and investigation into allegations based on strong circumstantial evidence, you recommend continued secrecy in order to make it easier to gain evidence of impeachable misconduct.
You also claim that it is not a problem that no one–except governments and government officials and employees– who is not represented by some high-profile legal foundation or a $1,000-per-hour Washington, D.C.-based Supreme Court Specialist (someone who is among the handful of “regulars”–members of a cartel that serve as de facto screeners for access to the Court) has access to the Court. And that the Court, year after year and decade after decade, deliberately allows rampant lower-court misapplication of Court-invented jurisdictional/quasi-jurisdictional doctrines or interpretations of federal criminal statutes or some such until, finally, some mega-corporation or uber-wealthy individual asks the Court, in a petition bearing the name of a cartel member, asks the Court do exactly that. I’m certain that most people would see a problem with that if they knew of it.
Yet you do see a problem with mandating a removal of anonymity from these actions, because that would impair their independence. Presumably you think the release of argument transcripts identifying which justice says what, and the allowing of journalists and members of the public into the courtroom to hear the arguments, and the identifying of opinions’ authors, dissenters and concurrers impairs the justices’ independence. But you don’t explain why, because like so many other rightwingers, your real interest, or at least your modus operandi, is the spouting cliches (“judicial independence,” for example) in a series of non sequiturs, and quoting or just dropping the names of Founder-era folks. Too bad no one has copyrighted this formula.
As for typos, that obviously is false. I never, ever, ever make typos.