This is part 8 of the Saving the Court series. I would encourage you to read previous posts, including
- Saving the Court: Announcing the Project (Part 1)
- Saving the Court: How We Got Into This Mess (Part 2)
- Saving the Court: A History of Supreme Court Reform Efforts (Part 3)
- Saving the Court: The Nomination and Confirmation Process (Part 4)
- Saving the Court: Expanding the Number of Justices (Part 5)
- Saving the Court: Term Limits (Part 6)
- Saving the Court: The Court’s Role in the Constitutional Process (Part 7)
This post deals with three issues that, while not as high profile as reform proposals such as expanding the size of the Court or term limits for Justices, are nonetheless exceedingly important in strengthening the legitimacy of the Court in the minds of the public. The issues to be examined in this chapter are the Court’s use of emergency orders, which are becoming increasingly utilized and increasingly problematic; judicial ethics, which, at the time of this writing are very much in the news; and public access to the Court’s proceedings.
Most people are familiar with the work of the Supreme Court because of the decisions it makes in “merits cases.” However, the Court does much more than just decide merits cases. In fact, the vast majority of the cases filed in the Supreme Court are disposed of summarily by unsigned orders. Most common are the thousands of orders the Court issues each year declining to review cases by denying petitions for certiorari.
Another category of unsigned orders involves emergency requests to issue an injunction, vacate a lower court’s injunction, grant or lift a stay of a lower court ruling, or deny such emergency relief. Although lesser known than the Court’s merits cases, emergency orders nonetheless have substantial impact on the rights and obligations of governments, private institutions, and broad segments of the American public.
For the purposes of this post, it is important to understand the difference between merits cases and emergency orders. Merits cases are cases in which the Court grants review and the parties then conduct established rounds of briefing and participate in oral arguments. The Court may also receive briefs from interested non-parties called amici curiae. In these cases, the Court eventually issues a decision with a reasoned, written opinion and discloses the votes of all Justices. These robust procedures are intended to ensure that the Court’s decisions are well informed, fair to the parties, and attentive to implications for the broader legal system. The opinions in these merits cases generally carry the full weight of precedent and thus are written in a manner that not only binds lower courts but also aspires to guide them, all while limiting the likelihood that the Court will dramatically change its own positions in the near future.
In contrast, according to Stephen Vladek, professor at the University of Texas School of Law, emergency orders, which have come to be known as the “shadow docket,” “typically come after no more than one round of briefing (and sometimes less); are usually accompanied by no reasoning (let alone a majority opinion); invariably provide no identification of how (or how many of) the Justices voted; and can be handed down at all times of day — or, as has increasingly become the norm, in the middle of the night. Owing to their unpredictable timing, their lack of transparency, and their usual inscrutability, these rulings come both literally and figuratively in the shadows.”
The shadow docket is not a new phenomenon, although the “shadow docket” moniker is. It was first coined in 2015 by University of Chicago Law Professor Will Baude, and refers to the hidden, almost secretive nature of cases handled as emergency orders. Unlike merits cases decisions, which are announced promptly beginning at 10:00 AM eastern time on “decision days,” shadow docket announcements occur at unpredictable times, often coming late at night or extremely early in the morning when most Court watchers are sleeping. Despite this fact, it is important to point out that there is nothing inherently pernicious about the shadow docket. Every court needs a means to handle applications and emergency requests not part of merits cases. The shadow docket is not the problem. It is the way the Court handles cases on the shadow docket that has become an issue.
For most of the Court’s history, the shadow docket was largely ignored. Decisions made on shadow docket cases were largely inconsequential, involving non-controversial cases. A few cases, such as an emergency order to halt bombing in Cambodia, the initial stay of the Florida recount in the case that became Bush v. Gore (531 U.S. 98), as well as many death penalty cases, are exceptions. But even with those cases, the focus was on their substance, not the Court’s procedures.
In 2017, the Court began to issue many more emergency orders. However, it’s not just the quantity of emergency orders that has changed. Vladek, who has become the foremost expert on the Supreme Court’s shadow docket, says there are six primary ways that the Court has changed the way they handle the shadow docket.
- With the exception of ordinary writs of certiorari, “there are a lot more cases in which the Justices are using the shadow docket not only to grant emergency relief — where the Court’s summary action disrupts what was previously true under rulings by lower courts — but to grant emergency writs of injunction, which are supposed to be the most extraordinary and unusual form of such relief… What these injunctions underscore is that the kind of emergency relief the Court is issuing has changed. Even when the Court was granting a handful of stays between 2005 and 2013, for instance, most involved executions — where the ruling had little impact beyond the case at issue. Now, in contrast, many of these rulings are either directly enjoining statewide policies…or staying lower-court rulings that had enjoined state/federal policies. In that respect, these emergency rulings are having a far broader substantive impact, for better or worse, compared to emergency rulings in the past.”
- “[T]he shadow docket during the Trump administration saw a remarkable increase in action from the Solicitor General. In contrast to the eight applications for emergency relief filed by the Justice Department between January 2001 and January 2017…the Justice Department filed 41 applications for such relief during Trump’s presidency — asking the Justices to intervene at a preliminary stage of litigation more than 20 times as often as either of its immediate predecessors. Emergency applications became such a central feature of the Office of the Solicitor General during the Trump administration that it even led to a restructuring of the Office’s staff. And the dramatic increase in applications paid dividends. Not counting one application that was held in abeyance and four that were withdrawn, the Justices granted 24 of the 36 remaining applications in full, and another four in part.”
- In recent years, the shadow docket has become much more publicly divisive. For instance, during the George W. Bush and Barak Obama administrations (a total of sixteen years), only eight emergency order applications were filed by the Solicitor General, and only one provoked a public dissent from a Justice. By contrast, “27 of the 36 applications from the Trump administration on which the Justices ruled provoked at least one Justice to publicly dissent. And expanding the focus beyond applications from DOJ, there has been a sharp increase in the total number of shadow docket rulings that have provoked four (and even three) public dissents. During the October 2017 Term (Justice Kennedy’s last on the Court), for instance, there were exactly two shadow docket rulings with four public dissents. In the next two Terms, there were 20. Indeed, during the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”
- “Fourth, although it has long been a criticism of the shadow docket, especially denials of certiorari, that the public usually has no idea how many Justices voted for a specific outcome (let alone which Justices), that concern has become that much more pronounced as the public tally has increasingly reflected multiple dissents. Consider, in this respect, the Court’s February 2021 order refusing Alabama’s request to vacate a lower-court injunction that had blocked a scheduled execution. Four Justices joined in an opinion explaining the basis for their concurrence. Only three Justices noted dissents. So we know that either (or both) of Justices Alito and Gorsuch joined the majority to block the execution. But we have no idea which of them, or if they both did, or why. Stealth votes aren’t new, but as the shadow docket grows in both absolute terms and divisiveness, the stealth votes are increasingly the dispositive ones — which, among other things, complicates efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”
- “[A]ccompanying the rise of the shadow docket has been the rise of new (and unusual) forms of relief. Consider the aftermath of the ‘South Bay II’ decision handed down on February 5, (2021) in which the Court, in an unsigned order, issued an emergency writ of injunction barring California from enforcing at least some of its COVID-related restrictions on indoor worship services. The following Monday, the Court issued an order in another California case in which a plaintiff had also sought an emergency injunction. Instead of granting the injunction, the Court treated the application as it if were seeking a petition for a writ of certiorari before judgment (itself an unusual procedural vehicle). It granted the petition and issued a ‘GVR,’ i.e., a summary order granting the petition; vacating the district court’s order; and remanding ‘for further consideration in light of’ South Bay II — itself an unsigned order that was not accompanied by an opinion of the Court. What about the Court’s summary ruling in South Bay II was supposed to lead the district court to reconsider its prior ruling? To similar effect, on January 15, the Court granted another petition for certiorari before judgment in a federal death penalty case — and, unlike the ‘GVR’ order in Gish, summarily reversed the district court on the merits. That is, the Court jumped over the Court of Appeals and issued a one sentence merits ruling,” a procedural outcome that, according to Vladek, had never happened before.
- “[T]he dramatic increase in significant shadow docket rulings has brought with it novel questions about how lower courts are supposed to give precedential effect to rulings that the Supreme Court has itself previously suggested are of little precedential value. For instance, a panel of the Fourth Circuit split sharply in August 2020 over what to make of how the Supreme Court had handled emergency applications in different cases brought by different parties challenging the same underlying governmental policy…Simply put, it is no longer possible for any reasonable observer to dispute that there has been a dramatic uptick in significant, broad-impact rulings on the shadow docket in the past few years; that these rulings have been unusually divisive; that they are leading to novel forms of procedural relief from the Court; and that their substantive effects are causing significant uncertainty both in lower courts and among those government officers, lawyers, and courtwatchers left to parse what, exactly, these rulings portend both for the specific policies at issue and for the broader contours of the relevant legal doctrines.”
The six changes outlined above chronicle how the Court has come to make increasingly important decisions without benefit of the structure and uniformity associated with merits cases. These shadow docket decisions, which are becoming increasingly common, are not providing any reasoning for the decisions reached, not disclosing the vote of the court or how each Justice voted, and decisions are being revealed at a time and in a manner that lack transparency and cause confusion.
Simply put, the rise of the shadow docket, particularly at the expense of the merits docket, is chipping away at the legitimacy and public perception of Supreme Court decisions. As Professor Vladek writes, “If the Court is handing down a higher number of decisions affecting Americans in unsigned, unreasoned orders, both in absolute terms and relative to merits rulings, that necessarily exacerbates charges — fair or not — that the Justices are increasingly beholden to the politics of the moment rather than broader jurisprudential principles.”
Justice Sonia Sotomayor further warns that the way the shadow docket is currently being used tends to “erode the fair and balanced decisionmaking process that this Court must strive to protect.” (Wolf v. Cook County, Ill.) In the infamous Whole Women’s Health shadow docket case (also known as the Texas SB8 case), Justice Elena Kagan took the majority to task for “barely bother[ing] to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail…the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” (Whole Woman’s Health v. Jackson)
Procedural regularity matters. The way the Supreme Court carries out its charter, not just the decisions it reaches, are what give the Court legitimacy. As the Court said in Planned Parenthood of SE Pennsylvania v. Casey (505 U.S. 833):
“The Court’s power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.
“The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
There are two proposals to consider to reform the way the Supreme Court uses the shadow docket. The first is offered by Professor Vladek and is designed as an overall remedy for what ails the shadow docket. The second was published by the Presidential Commission on the Supreme Court of the United States in 2021 and is designed specifically for emergency order applications relative to capital cases.
Vladek breaks his reform proposal down into two sections. Section one deals with reforms that the Court can implement on its own without input from Congress. Section two reforms are those that Congress can enact to make the Court’s use of the shadow docket more effective and transparent.
- Revive the practice of having individual circuit judges (rather than the full Court) resolve even contentious emergency applications whenever and wherever possible (including, where appropriate, holding in-chambers oral arguments).
- Formally publish any order by an individual circuit judge denying an application, whether or not it is accompanied by an opinion.
- Amend the Court’s formal rules and informal norms to provide far clearer guidelines for the procedures and timing of emergency applications (at least in non-capital cases), including the rules governing amicus participation and the possibility of oral argument before either the full Court or the circuit judge.
- Commit, at least informally, to publishing a rationale (and publicly identify the concurring and dissenting Justices) for (1) any order that grants an application for emergency relief; (2) any order (other than a denial of certiorari) from which a Justice publicly dissents; or (3) any other order that the Justices intend to have precedential effect in the lower courts.
- Tie any order granting emergency relief to a specific statutory authority — and, where possible, articulate why the relevant standard for such relief has been satisfied.
- Commit to scheduled releases of orders on emergency applications except where circumstances prohibit it (as in last-minute execution-related litigation), and to provide advance public notice of order issuance wherever possible.
- Treating applications for emergency relief on novel and important questions of federal law as petitions for certiorari — and adding the case to the merits docket for plenary review at the same time as the Court rules on the emergency application.
- Congress can and should consider mechanisms for taking pressure off of the shadow docket. If the rise of the shadow docket is in part a reaction to external catalysts, Congress can, of course, address them. Among other things, such reforms might include:
- Allowing the federal government to transfer all civil suits seeking “nationwide” injunctive relief to the D.C. district court — to avoid the concern of overlapping (or diverging) “nationwide” injunctions.
- In cases in which any (state or federal) government action is enjoined by a lower federal court, speed up the appellate timelines so that appeals of lower-court rulings receive plenary review much faster — by shortening the time for filing an appeal; by mandating aggressive briefing schedules; and by strongly encouraging courts to give such cases all due priority.
- In capital cases (where Justices from across the spectrum have bemoaned the difficulty of confronting novel legal questions on the literal eve of a scheduled execution), give the Court mandatory appellate jurisdiction at least over direct appeals — and make it easier for prisoners to bring method-of-execution challenges before an execution date has been set.
- Congress might consider codifying certain features of the shadow docket that were only norms historically. These could include:
- Codifying the traditional four-factor test that the Court applies in considering applications for emergency relief.
- Encouraging the Justices to provide at least a brief explanation of any order that grants any type of emergency relief.
- Encouraging the Court to hold arguments on applications where there is at least a reasonable likelihood that the Justices will grant relief.
- Requiring (or, at least, encouraging) applications to be resolved in the first instance by the Circuit Justice without referral to the full Court. (Vladek 2021, 31-34)
Proposals for Capital Cases
Capital cases pose a serious challenge to the Supreme Court. These cases come to the Court as emergency petitions as the date of execution nears, and as unresolved legal challenges related to the execution pend in the lower courts. If a stay of execution is not granted in the lower court, the condemned person will turn to the Supreme Court for a stay. If the lower court does grant the stay of execution, the state will ask the Supreme Court to vacate the stay so the execution can be carried out.
The prospect of the Court making a mistake in a capital case is obvious. “At the extreme, the risk of legal error may compound a risk of factual error, thus raising the worry that the state may kill an innocent person.” The worry is not unfounded.
According to Christina Swarns of the Innocence Project, “One-hundred-eighty-five people have been exonerated after being wrongfully convicted of a capital offense and condemned to death. This means that for every eight executions in this country, one person has been exonerated.” Considering the statistics, “the risk of convicting and executing an innocent person is real and constitutionally unacceptable.”
Not all appeals in capital cases revolve around the innocence of the person condemned to death. In some cases, the concern is instead that the execution will violate constitutional or other legal rights by carrying out the execution.
Notre Dame Law Professor Steven Bray sees the prospect of an error on an emergency order petition in a capital case as an asymmetrical proposition. “[T]here is no symmetry between an erroneous execution and an erroneous non-execution. If proper attention is given to irreparability and the need to preserve the judiciary’s ability to decide a case, then the Justices should be much more willing to give shadow docket orders that delay an execution than shadow docket orders that accelerate an execution.”
Asymmetric or Automatic Stays of Execution
The first proposal offered incorporates the asymmetry discussed by Professor Bray. There should be a “presumption in favor of staying an execution when there is genuine doubt as to its legality, or with a heightened standard of review for vacating stays when lower courts have issued them.”
Under a proposal endorsed by Justice Stevens and by a commission led by Justice Powell, “the Supreme Court should be required to automatically grant a stay of execution to any defendant who has not yet completed a first federal habeas review.” Professor Vladek offered that “every person with a pending execution date should have at least one full opportunity to litigate any challenges to the state’s proposed method or administration of execution.”
Four Votes to Stay an Execution
In 1994, Ronald B. Smith was convicted of the murder of a convenience store clerk. Of the twelve people on the jury that heard his case in Huntsville, Alabama, seven voted to convict. Five did not. Since Alabama only requires a simple majority vote in murder cases, Smith was convicted. The jury recommended a sentence of life without parole, but the judge overruled them, instead sentencing Smith to death.
When Smith’s lawyers filed an emergency order to stop his execution with the Supreme Court, four Justices voted to grant the stay. That was not enough. Supreme Court rules require at least five votes to grant an emergency request to stay an execution. Ronald Smith was executed on December 8, 2016. Despite four Supreme Court Justices believing there was a problem with his conviction and would have likely voted to grant a writ of certiorari to consider his case, they never got the chance.
This second reform proposal would reduce the number of votes required to grant a stay from five Justices down to four. Such a reform would address what is known as “a lethal gap” in the Court’s administrative process. It takes four votes to put a case on the court’s docket (via writ of certiorari), but it takes five to stop an execution. In other words, it is possible for the Court to grant certiorari in a death penalty case and schedule the case for full briefing and argument to consider an important question of law, and yet also allow the petitioner to be executed while the case is pending.
Justices have known about the lethal gap for years, and at times have addressed it by employing what is known as a “courtesy fifth,” when a Justice who does not believe that stay is warranted will nonetheless vote for the stay if four other Justices have voted for it already. However, the “courtesy fifth” is an informal rule, not a written edict, and Justices are not compelled to follow it. As a result, it is not always employed.
In one case, “four Justices voted to call for the views of the Solicitor General, a step typically taken only in cases in which the Court is seriously considering granting certiorari. But as Justice Breyer noted in dissent, ‘[N]o Member of the majority…proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received. As it is, the request will be mooted by petitioner’s execution.”
In Dunn v. Price (139 S. Ct. 1312), the state petitioned the Court to vacate a lower court stay on the evening of the execution. Four Justices asked that the application be held until the next day’s regularly scheduled conference so all the Justices could discuss the issue. The Court refused and entered a brief order vacating the stay. Again, no courtesy fifth could be found.
Discussion: For the past several years, the Supreme Court’s “shadow docket” has become increasingly controversial. It is not the docket itself that is the subject of controversy, but the way the Justices use it. More and more cases are being decided on the merits as part of the shadow docket, which is a problem because the Court rarely hears arguments, decisions are rarely explained, Justices’ votes are not recorded, and lower courts do not know when they should consider a shadow docket decision as precedent, and if they should, based on what rationale. As a result, the public has less knowledge of or trust in the Court’s decisions, making a bad legitimacy crisis even worse.
Unlike more popular reforms, like expanding the size of the Court or term limits for Justices, the reforms offered in this post are “low risk” reforms, meaning they don’t impact the structure or jurisdiction of the Court, and can be implemented without much risk of making the current situation worse. If there are negative unintended consequences, the reforms can fairly easily be reversed.
Having said that, the proposed reforms have a good likelihood of improving the current situation with the shadow docket. They will likely bring the shadow docket out of the shadows and require the Court to explain their decisions, record their votes, give guidance to lower courts, and instill a sense of legitimacy to the process.
This is especially true with capital cases. The stakes are too high when an execution is pending to rely on sub-optimal, often unwritten, rules. As was stated previously, the stakes are asymmetrical between granting a stay of execution and vacating a stay. The Court should have an institutionalized preference for granting a stay.
The House Select Committee looking into the January 6 attack on the United States Capitol revealed that it had obtained several text messages related to the attack between Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Chief of Staff for former President Donald Trump. As part of their investigation, the Committee subpoenaed documents from Trump, who moved to thwart the subpoena under the guise of Executive Privilege. The Supreme Court ruled 8-1 that Trump must turn over the documents—including the text exchange between Ginni Thomas and Meadows—to the committee. The lone dissent? Justice Clarence Thomas.
Even fans of Ginni Thomas’s politics and supporters of Clarence Thomas’s work on the Court find it difficult to justify Justice Thomas not recusing himself from a case in which his own wife was so intimately involved. The Judicial Conduct and Disability Act of 1980 requires that a judge recuse themselves whenever there is the slightest conflict of interest. The problem is that, while other federal judges are subject to The Judicial Conduct and Disability Act, Supreme Court Justices are not.
The need for a code of ethics for Supreme Court Justices has been discussed for many years. In a 2011 year-end report, Chief Justice Roberts emphasized that “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations. In this way, the Code plays the same role for the Justices as it does for other federal judges since…the Code is designed to provide guidance to judges.”
Even if the Justices do consult and follow the Code of Conduct—a claim that is easier to make than verify—not having a formally adopted code to hold Justices accountable may not be a good idea. Professor Emeritus Arthur Hellman of the University of Pittsburgh School of Law, an expert on judicial ethics, said, “it is regrettable that the justices have not adopted a code of conduct, but it is important for everybody to understand that what is probably the most important set of ethical rules, the disqualification rules, do apply to the Supreme Court.”
Since failing to recuse himself in the case involving his wife, it has come to light that Justice Thomas accepted millions of dollars of gifts over the years from Harlan Crow, a right-wing political advocate and donor. He was not alone. Justice Samuel Alito accepted at least one all-expenses-paid vacation to Alaska from a wealthy hedge fund manager who had business before the court; Justice Gorsuch accepted an offer on a piece of property he had been trying to sell for more than two years to an attorney who often argued before the court; and Chief Justice Roberts’ wife received more than $10 million from law firms with appeared before the Court to recruit new attorneys to those firms. To make matters worse, the Justices involved failed to report the money they or their spouses received on their required government disclosure forms. The stench of unethical behavior hangs heavy over this Court, and several Congressmen—most notably Sen. Sheldon Whitehouse (D-RI)—have called on Congress to implement a code of conduct that would apply to the Justices on our nation’s highest court.
There are three ways to go about applying a code of conduct to Supreme Court Justices. The first is for the Court to simply adopt the same Code of Conduct that applies to all other federal judges. The second involves the creation of an internal code, which the Court would adopt itself. The third way is the external imposition of a code, which Congress would implement, and which would apply to the Court.
Supreme Court Justices could voluntarily adopt the Code of Conduct (from the Judicial Conduct and Disability Act of 1980) that already applies to other federal judges. This could be done quickly and easily, and by doing so, Supreme Court Justices’ ethical obligations would then parallel those of their brethren on the lower federal courts.
Another option is for the Justices to create their own code of conduct, separate from the one that applies to lower court judges. One advantage to creating a new code is that the language used could be geared specifically to the uniqueness of the Supreme Court. For instance, in the context of a recusal, unlike in a lower court, a Justice cannot simply be replaced by another judge. In addition, Justices receive much more attention than lower court judges when it comes to invitations for public and private appearances. The Justices are well-positioned to set standards for themselves in these situations.
“While the Justices’ participation in a broad range of educational and professional activities undoubtedly benefits the profession and the country, the Justices must be mindful of appearances if they choose to attend meetings of organizations that have a political or other valence that could cause the Justices’ attendance to become controversial or cast doubt on their neutrality. A code drafted by Justices, amplified over time through its application, might help the Justices navigate these waters.”
Another option is to have Congress create a Code of Conduct that would apply to Supreme Court Justices. Several bills have been proposed over the years, but none has been enacted. Part of the reason for this is that some Members of Congress, as well as the Justices themselves, are resistant to applying Congressionally mandated ethics rules to the Court.
In that same 2011 year-end report cited previously, Chief Justice Roberts contended that the Judicial Conference, the body created by Congress to administer the federal courts, lacks the authority to apply a code of conduct to the Supreme Court. “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”
If Chief Justice Roberts is correct that the Judicial Conference lacks the mandate to promulgate ethical standards for Supreme Court Justices, then surely Congress has the power to create a code of conduct for the Justices. After all Congress already imposes requirements on Supreme Court Justices—such as requiring Justices to take an oath of office—that resembles a code of conduct. However, Congress has traditionally been reluctant to exercise control over the ethics of the Court, instead delegating that responsibility to the Court itself.
Discussion: In the introduction to this series, I shared the story of how Justice Scalia died at a hunting lodge owned by a wealthy businessman who recently had a case before the Court. This post began with a recounting of a case where Justice Thomas should have, but did not, recuse himself from a case he knew, or should have known, involved his wife. And I shared several other unethical cases involving various Justices. The Court is currently in the midst of an ethical crisis unlike anything it has experienced previously.
When examining the various Supreme Court reform proposals, I do my best to consider the pros and cons of each proposal dispassionately and objectively. Sometimes, while a given proposal may have a desired upside, it also has a significant and troubling downside. In the case of applying an ethical code of conduct to the Supreme Court, I am having trouble discerning any downside. Why would we not want the Justices from the highest court in the nation to be subject to an ethical code of conduct?
The thesis of this entire series of posts is that the Court is experiencing a legitimacy crisis due to the dysfunctional nomination and confirmation process, the unbalanced nature of the Court, the Court’s perceived politically-inspired decisions, etc. What could be more basic to address this crisis than for the Justices at the center of it to be subject to an ethical code of conduct? The entire federal judiciary, with the exception of Justices on the Supreme Court, is subject to a Code of Conduct. It’s time that Supreme Court Justices are subject to rules of ethical behavior as well.
Ideally, the code would be written (either by the Justices themselves or Congress), taking into account the special nature of the Court and the unique challenges it faces. The Judiciary Conduct and Disability Act was written with a wide range of judges in mind. A separate code of conduct specifically tailored to the challenges faced by Supreme Court Justices would not only provide an ethical roadmap customized to fit the needs of the Court, it would also be an effective way of addressing, in part, the crisis of legitimacy currently faced by the Court.
The room where the Supreme Court of the United States meets to hear cases is not as big as one might think. In fact, considering that it is the apex court in a nation of nearly 330 million people, and widely considered to be the most powerful court in the world, the Supreme Court is rather modest in size. Its hearings are open to the public, but there are only about three hundred seats available, many reserved for interested parties and the media. The rest are filled on a first-come-first-served basis.
Because of the COVID-19 pandemic, the Court began conducting oral arguments via teleconference. At the same time, oral arguments were available to the public via livestreaming audio. Although the Court has gone back to holding in-person oral arguments, they have so far continued to offer livestreaming audio. This public access of livestreaming audio has led to renewed calls for placing cameras in the Supreme Court and providing real-time, livestreamed video of the Court’s proceedings.
Today, the work of the Court is more accessible than ever before. In addition to livestreaming audio, the Court’s opinions are online where anyone with an internet connection can access them. The same is true of Court orders and decisions on petitions of certiorari. The Court’s website features news about the Court, Court history, the Court’s schedule, as well as links to make electronic filings, information on visiting the Court, and a way to contact the Court to ask non-urgent questions of a public information officer.
Despite the unprecedented level of access, Georgia State University law professor Eric Segall does not think it’s enough. “The Supreme Court does not currently allow any of its public oral arguments or decision announcements to be televised, live-streamed, videotaped or photographed. This blackout deprives the American people of something that is rightfully theirs: the ability to observe government officials perform important duties that only a select few can witness in person… There may have been a period when cameras in courtrooms presented unknown risks, but that time is long past.”
Segall, along with Dean of the University of California-Berkely School of Law, Erwin Chemerinsky, made an even more impassioned argument in an essay they wrote for the Duke Law School Bolch Judicial Institute publication Judicature:
“The United States Supreme Court is now and has been for over 200 years the most powerful and important legal tribunal in the world. As Alexis de Tocqueville said in the 19th century, ‘there is hardly a political question in the United States which does not sooner or later turn into a judicial one.’ Over the last ten years alone, critical decisions regarding abortion, affirmative action, gun rights, Obamacare, campaign finance reform, voting rights, redistricting, and numerous other fundamental issues concerning how the people of the United States govern and define themselves have been made by our highest Court. Yet, the Supreme Court of the United States has never allowed a single oral argument or decision announcement to be broadcast or live streamed. This stubborn and anachronistic refusal to enter modern times is not just a national embarrassment but a great disservice to the rule of law and a government by and for the people.”
The fact is, having cameras in the courtroom is not a new or novel idea. The supreme courts of all fifty states allow cameras in their courtrooms, as do many lower federal courts, including the United States Court of Appeals for the Ninth Circuit.
Texas Justice Don Willett, who was on a short list of potential Supreme Court nominees during the Trump Administration, doesn’t have any concerns about having cameras in the courtroom. “My court has been webcasting for a decade. No hiccups. No regrets. No going back. We inhabit a hyper-partisan age, and there’s enormous civic-education upside in We the People seeing their judges tackle fateful issues with thoughtfulness and civility. I wouldn’t presume to lecture the Supreme Court of the United States, but our experience has been overwhelmingly positive.”
Even so, there are still those that oppose the idea of broadcasting Supreme Court proceedings, including Supreme Court Justices. They worry that having cameras present may lead to grandstanding by attorneys and/or Justices. They raise concerns that the discussions taking place during oral arguments may become scripted and less useful to the disposition of the case. And they fear that video clips of Court proceedings will be taken out of context and could mislead the public.
Former Supreme Court Justice Anthony Kennedy has been one of the most vocal critics of broadcasting Court proceedings. While testifying before Congress in 2014, Kennedy raised his objection to cameras in the courtroom. “We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give. We feel . . . that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because we were on television. I just don’t want that insidious dynamic to come between me and my colleagues.”
Chemerinsky and Segall take umbrage with Justice Kennedy’s contentions:
“Justice Kennedy’s two objections to cameras have little merit. First, the Court is much more than a ‘teaching institution.’ It is a coercive government body handing down rules that bind our cities, states, Congress, the President, and the American people. We have a right to see how the Court conducts its public business. Moreover, to the extent the Court plays a ‘teaching’ role, its oral arguments and decision announcements, as noted earlier, are conducted politely and with respect, even where there are strong disagreements among the justices and the lawyers arguing the cases. Allowing millions of Americans, and people all over the world, to witness this dynamic in real time would provide excellent role modelling for our public debates in other fora…To the extent Justice Kennedy is concerned about his colleagues misbehaving in front of the cameras, this worry is one totally in control of the justices. Moreover, it is extremely unlikely that the justices would want to appear in a negative light during the broadcast of its proceedings… We believe that the Court’s credibility only will be enhanced if more people see the justices at work. Anyone who watches a Supreme Court argument will see highly intelligent, superbly prepared individuals grappling with some of the nation’s hardest questions. The public will see, too, that there are few easy answers to most constitutional questions, and that there are usually compelling arguments on both sides. That only can increase the public’s understanding of the law.”
Discussion: Although I think proponents of having cameras in the courtroom provide much stronger arguments than those opposed, I am nonetheless sensitive to the arguments made by opponents, particularly the Justices themselves. That’s not to say that I agree with their arguments. To be frank, I think their arguments are rather flimsy. Even so, there is a tradition of exclusivity that hints at importance and decorum that would be lost by broadcasting Court proceedings that I almost hate to see disappear. Almost.
So, it is time again to ask the legitimacy question: Will the reform designed to increase Supreme Court transparency work to strengthen the legitimacy of the Court? The answer is “yes.” Having access to the Court and seeing it do its important and necessary work can only enhance the public’s view of the Court. More than that, the public deserves to see the nation’s highest court in action and to better understand the work it does in furtherance of our democracy.
Perhaps there is a middle ground. The work of the Supreme Court, at least the work most of the public is interested in, is two-fold. First, there are the oral arguments where lawyers make presentations, Justices ask questions, and the case is discussed. Second, are the announcements of decisions, where the Court presents its opinion, and the Justices often read from their written decisions and dissents, occasionally peppering their reading with additional thoughts and insight. Perhaps opponents of broadcasting Court proceedings, including the Justices themselves, would be more comfortable if only decision announcements were broadcast initially.
“It is especially absurd that the Justices do not allow broadcasting of their announcements of decisions. At times, these are quite dramatic, such as when Justices read dissents from the bench or make comments that are not contained in their written opinions. These statements from the bench are not recorded or transcribed and are forever lost except for whatever reporters say about them.”
The broadcasting of announcements of decisions could be a first step in introducing cameras into the courtroom. Initially, oral arguments would not be televised, but the goal would be to eventually broadcast all Court proceedings.
The bottom line is that there no longer is a good reason to not have cameras in the courtroom. It works in the supreme courts of all fifty states, and it works in lower courts, including federal courts of appeal. There is no reason to think that it will not also work in the Supreme Court.