I agree because the court has obviously become more political. How many cases will John Boehner take to the court to get what he can't through legislation?
How often do we have to watch a case like Citizens' United be extended way beyond what the court case was supposed to be?
Politics has always been there but today it seems supreme.
How often do we have to watch a case like Citizens' United be extended way beyond what the court case was supposed to be?
Politics has always been there but today it seems supreme.
The big question for me is who does the Supreme Court answer to? And who said they never make mistakes?
The Supreme Court seems to be the only branch of government with no appeal, no accountability. What do the American people do if SCOTUS has made a mistake?
The Supreme Court seems to be the only branch of government with no appeal, no accountability. What do the American people do if SCOTUS has made a mistake?
1
Well, there's changing the law and/or the Constitution, for one. So, the court is not entirely irreversible, but it does take time.
1
I can see how a law professor would have that much more material for their profession if this information were public. But not everything needs to be a data point. And just as the court ruled in Riley v. California that aggregated data points form a "qualitative and quantitative" different whole, I caution against opening the chamber up just to able to draw conclusions about the court's thinking.
Their job is to choose cases and make decisions. The latter is what we should concern ourselves with UNLESS we feel there is corruption in the process that leads to the former. Professor Fisher offers no evidence that that's the case and so the "sunshine" he is calling for seems to me to be an irrelevant intrusion into a process that may not make everyone happy, but is not a source of corruption.
As to the argument that they are public servants and there is no compelling reason to conceal their votes so long as we do not require them to have to justify them, that's just naive. We would be opening the justices up to constant questioning and challenging around those votes if they have to declare them. That might be good for lawyers looking for new ways to influence the court by being able to use those prior decisions when petitioning the court to hear new cases, but I do not see it helping the public.
Their job is to choose cases and make decisions. The latter is what we should concern ourselves with UNLESS we feel there is corruption in the process that leads to the former. Professor Fisher offers no evidence that that's the case and so the "sunshine" he is calling for seems to me to be an irrelevant intrusion into a process that may not make everyone happy, but is not a source of corruption.
As to the argument that they are public servants and there is no compelling reason to conceal their votes so long as we do not require them to have to justify them, that's just naive. We would be opening the justices up to constant questioning and challenging around those votes if they have to declare them. That might be good for lawyers looking for new ways to influence the court by being able to use those prior decisions when petitioning the court to hear new cases, but I do not see it helping the public.
2
Probably most (say 85%) of the rejected cases are rejected because they are just obviously and transparently unsuitable for court review. The reasons could be very weak presentations, silly material and sometimes just offensive and objectionable language. To explain these rejections or to give details would be a monumental waste of an already overburdened court's time.
2
This article mis-characterizes Scalia and Kagan's dissent in San Francisco v. Sheehan. Yes, they argued that the Court never have granted cert, but NOT "because it presented unusual facts unlikely to recur with any frequency," as the author tells us.
The real reason Scalia and Kagan dissented is that the attorney for San Francisco, when she presented the petition for cert, claimed that there was a circuit conflict on how the Americans with Disabilities Act should apply to the arrest of armed and violent suspects who may have mental or physical limitations. And that would have made for a good case. But when San Francisco presented its case, they instead presented a facts-based argument aimed at getting the court to overturn the 9th circuit's ruling. In other words, it was a bait-and-switch. San Francisco's petition for cert was specifically written to entice the Supreme Court to take the case.
Unfortunately for Scalia and Kagan, the Court rewarded San Francisco for its tactic by reversing the 9th Circuit ruling and granting qualified immunity to its officers, who previously had been found liable for injuries sustained by the suspect (Sheehan) during the arrest. Scalia and Kagan, odd bedfellows, were united by their desire not to incentivize sneaky lawyering in the future.
This may seem like quibbling. But I resent that the author changes facts to fit his conclusion. The Scalia/Kagan opinion had absolutely nothing to do with the initial vote on whether or not to grant cert.
The real reason Scalia and Kagan dissented is that the attorney for San Francisco, when she presented the petition for cert, claimed that there was a circuit conflict on how the Americans with Disabilities Act should apply to the arrest of armed and violent suspects who may have mental or physical limitations. And that would have made for a good case. But when San Francisco presented its case, they instead presented a facts-based argument aimed at getting the court to overturn the 9th circuit's ruling. In other words, it was a bait-and-switch. San Francisco's petition for cert was specifically written to entice the Supreme Court to take the case.
Unfortunately for Scalia and Kagan, the Court rewarded San Francisco for its tactic by reversing the 9th Circuit ruling and granting qualified immunity to its officers, who previously had been found liable for injuries sustained by the suspect (Sheehan) during the arrest. Scalia and Kagan, odd bedfellows, were united by their desire not to incentivize sneaky lawyering in the future.
This may seem like quibbling. But I resent that the author changes facts to fit his conclusion. The Scalia/Kagan opinion had absolutely nothing to do with the initial vote on whether or not to grant cert.
3
The decision about what cases should be heard has always been a decision without opinon, and for good reasons. First, the volume of entreaties requires winnowing the list to only those deemed where the decision sought to be appealed warrants the level of review offered by the Supreme Court. Secondly, providing more information about who didn't vote to accept a case or why it wasn't accepted is simply not useful to the court or the Republic. Just because it could be done and isn't doesn't make it some nefarious secret. Remember, 6 of 9 have to say no, which means the lower decision isn't going to change.
Thirdly, such disclosures would provide TMZ fodder about the innerworkings of the court and would provide distraction from the issues in the hugely important cases the Court elects to hear.
I see that Mr. Fisher's curiousity fuels this desire to frame the issue as a lack of transparency, but in the end, it could just be curiousity.
Thirdly, such disclosures would provide TMZ fodder about the innerworkings of the court and would provide distraction from the issues in the hugely important cases the Court elects to hear.
I see that Mr. Fisher's curiousity fuels this desire to frame the issue as a lack of transparency, but in the end, it could just be curiousity.
1
If the function of the Supreme Court is to interpret the law for the purpose of clarifying ambiguous legal rules and principles and resolving circuit splits, then the actual subject matter of the case should arguably have little impact on whether the justices will agree to hear the case. Each individual justice's vote on whether to grant certiorari should depend upon whether clarification is necessary in the first place. I don't think that the subject matter of cases granted certiorari would, or should, necessarily correlate with the justices' individual judicial philosophies. Justice Scalia has joined majority opinions written by Justice Ginsberg, and yet their judicial philosophies diverge quite significantly. The Court's role in shaping policy is ultimately restrained by the dictates of the US Constitution and the principle of stare decisis, so judicial philosophies may hold less significance than the author suggests.
I also think it is almost humorous to speculate that greater transparency of these votes will benefit the public, given that most Americans do not even know what the Supreme Court does. And as some other commentators noted, the justices receive lifetime appointments, and thus, any insight into their individual judicial philosophies is of greater importance from an ex-ante perspective, i.e. prior to their appointment on the Court, rather than from an ex-poste perspective, i.e. once they have already received a lifetime appointment.
I also think it is almost humorous to speculate that greater transparency of these votes will benefit the public, given that most Americans do not even know what the Supreme Court does. And as some other commentators noted, the justices receive lifetime appointments, and thus, any insight into their individual judicial philosophies is of greater importance from an ex-ante perspective, i.e. prior to their appointment on the Court, rather than from an ex-poste perspective, i.e. once they have already received a lifetime appointment.
2
If the justices choose to take up a case, the opinion and dissent should give ample reason for their deciding to take it up. I don't think 75 cases a session is overly much. They have help in researching and writing the opinions -- more clerk support than an average judge. The author seeks is a public vote on rejected cases. That's on 8000 petitions a year. That would entail a lot more work, because if individual votes are public, it's just a short hop to justifications explaining why they denied a petition. It's disingenuous to assert that the justices could merely reveal how they voted. Denial of a petition would cause political debate, making the court's work even more political than it already is. I don't see how that benefits the public.
I don't get John S.'s point about shining a light on the politics of the court. I think each justice has made his/her views on virtually all key issues abundantly clear.
I have no problem with the SC getting involved in correcting the flaws in death penalty cases. Somebody has to do it, unless we want to continue executing innocents, because hidden or new evidence isn't grounds for SC review.
It is not unusual for public officials not to explain non-actions. Police don't explain non-arrests, Congress doesn't explain non-hearings and bills not introduced. Senate holds on nominees are secret.
I don't get John S.'s point about shining a light on the politics of the court. I think each justice has made his/her views on virtually all key issues abundantly clear.
I have no problem with the SC getting involved in correcting the flaws in death penalty cases. Somebody has to do it, unless we want to continue executing innocents, because hidden or new evidence isn't grounds for SC review.
It is not unusual for public officials not to explain non-actions. Police don't explain non-arrests, Congress doesn't explain non-hearings and bills not introduced. Senate holds on nominees are secret.
1
I strenuously disagree with the premise that the court should announce it's vote. To me it would open up Pandora's box and I could see people trying to change the range and scope of what the Court does.
Any justice can write a dissent if they so choose and any member of the majority can write an opinion while agreeing with the decision they can to state their reasoning for the decision. That is up to them. But to force them to do so is foolish and ridiculous.
Would the author agree that I should know the subject matter of Obama's meeting with the Chinese premier?
What if I want a classified briefing from the NSA so I understand the terrorist threat.
Can I demand that I have input when Obama tries to execute an executive order? Why shouldn't I know? Aren't we talking about transparency?
You can take it anywhere. Can I sit in the Oval Office when he meets Bibi? :Leave well enough alone.
Any justice can write a dissent if they so choose and any member of the majority can write an opinion while agreeing with the decision they can to state their reasoning for the decision. That is up to them. But to force them to do so is foolish and ridiculous.
Would the author agree that I should know the subject matter of Obama's meeting with the Chinese premier?
What if I want a classified briefing from the NSA so I understand the terrorist threat.
Can I demand that I have input when Obama tries to execute an executive order? Why shouldn't I know? Aren't we talking about transparency?
You can take it anywhere. Can I sit in the Oval Office when he meets Bibi? :Leave well enough alone.
1
I think this is a great article. Public servants is exactly what Judges are. Everybody else is subject to scrutiny; why shouldn't they be? There's nothing to stop political bias. They're like the Pope of the Justice system; invincible, never held to account—and everybody knows that absolute power has a tendency to corrupt.
They can and do sometimes make the most ludicrous decisions based on total absence of logic, and create havoc with democracy and human rights and there's nobody to stop them. Nobody can touch them.
A system where those with power are untouchable and don’t have to constantly earn respect isn’t, by definition, democratic. And these guys hold huge sway over the law. It's the strangest thing, that this little pocket of tyranny still exists within what is otherwise a working democracy.
They can and do sometimes make the most ludicrous decisions based on total absence of logic, and create havoc with democracy and human rights and there's nobody to stop them. Nobody can touch them.
A system where those with power are untouchable and don’t have to constantly earn respect isn’t, by definition, democratic. And these guys hold huge sway over the law. It's the strangest thing, that this little pocket of tyranny still exists within what is otherwise a working democracy.
We can't get the justices to adhere to the standards of ethics that apply to all other levels of the judiciary, how can we expect the justices to open the doors on the conference where they decide what cases they will decide in favor of the rich and powerful this year?
They are not "busy enough" when they only hear 75 cases a year. SCOTUS has dramatically decreased their work load over the years. They are well-paid with excellent benefits & the brightest clerks. They need to accept more, not fewer cases each year.
This should absolutely be a transparent process. However, the argument that they don't need to explain why is ridiculous. Once it becomes transparent they will be asked why they made those decisions by the press and public so saying they are not required to say why is not an argument for making it transparent.
1
I believe that we should be able to read the deliberations, I don't think how the justices voted is important. All it does is add politics to the one branch of government that was supposed to be an impartial voice in the process. These group of justices seem very politicized as it is, too much so. Now that the GOP has begun to talk about taking away the courts power, removing the only real protection between us and tyranny, it's more important than ever to keep this branch separate.
In essence, Prof. Fisher's argument is that who votes to hear a case and perhaps why is of major importance. But he completely fails to say why it is so important to have this information. As life=appointees, they can't be fired and they certainly can't be removed simply for voting to hear or not hear a case. So is this more than an academic exercise? Perhaps the professor believe public light would somehow "shame" the justices to be more circumspect with their decisions? He doesn't say. Certainly, the professor's argument would have been far stronger had it moved toward an actual conclusion rather than a reiteration of its premise. Sadly, I must grade Prof. Fisher a C+ for intellectual rigor, and a B+ for writing style.
3
Yes by all means. Let's even provide them with a form they must use to report the results. Nonsense. All this would do is give lonely professors of law some work to do in writing law journal articles as the student attendance at law school drops.
2
Why does Mr Fisher suggest adding partisan attention and pressure on the last piece of non-partisan machinery in our government?
Supreme Court Justices have life-time appointments, and are beyond election or partisan review. What would it profit the people to know the details he claims are important here? Does Mr Fisher advocate public (or worse, private and individual) partisan pressure being put on those Justices whose decisions are inconvenient to a sectional interest?
To use his own example: "if some justices regularly vote to hear appeals from corporations and never from employees," and if the people were to discover this fact, what measure does Mr Fisher advocate here? What is our recourse if we were to learn this detail?
These are life-time appointments. Justices are permitted to vote to hear appeals only from corporations and never from employees, if they so choose. Mr Fisher, it seems to me, would do better to advocate instead for a more comprehensive (and substantive) review of potential Justices at time of nomination. Once they have the job, it is not in the people's interest to know their thinking, and it is out of the people's power to manage or mitigate that thinking.
Mr Fisher is less suggesting greater transparency than attempting to add an element of soap opera gossip to the workings of the court.
Supreme Court Justices have life-time appointments, and are beyond election or partisan review. What would it profit the people to know the details he claims are important here? Does Mr Fisher advocate public (or worse, private and individual) partisan pressure being put on those Justices whose decisions are inconvenient to a sectional interest?
To use his own example: "if some justices regularly vote to hear appeals from corporations and never from employees," and if the people were to discover this fact, what measure does Mr Fisher advocate here? What is our recourse if we were to learn this detail?
These are life-time appointments. Justices are permitted to vote to hear appeals only from corporations and never from employees, if they so choose. Mr Fisher, it seems to me, would do better to advocate instead for a more comprehensive (and substantive) review of potential Justices at time of nomination. Once they have the job, it is not in the people's interest to know their thinking, and it is out of the people's power to manage or mitigate that thinking.
Mr Fisher is less suggesting greater transparency than attempting to add an element of soap opera gossip to the workings of the court.
5
Maybe there should be a general review of the appointment-for-life rule so that there is less chance of absolute domination by justices who may have a decidedly partisan bent.
1
Transparency is anathema to the mystery and majesty of the Supreme Court, and to the Justices who appear out of and disappear into the magical red curtain in their forbidding, fortified marble palace.
These power is great and mysterious, it can not be questioned, that's why now we have rather controversial situation with same sex marriage: some people like the decision, some don't, some even openly oppose it, but nobody can seriously explain it, which is not really good for such an enormous mechanism as a state.
Given what appears to be a beak along philosophical lines, if the decisions made were more unanimous there would be less concern. However the fact that many decisions are a consistent 5 opposing an equally consistent 4 indicate a politicization that is acceptable by both Houses and the President.
This is not unfortunate for our Democracy it is destructive.
This is not unfortunate for our Democracy it is destructive.
1
The Citizens United decision crushed my confidence in SCOTUS. I don't know what the solution is but I can't imagine the Founding Fathers could have dreamed how the creation of the Supreme Court would play out centuries later.
Corporations are people? Give me a break!
I would indeed like to be privy to why the justices choose the cases they do, but my guess is that would only further erode my confidence in the institution.
Corporations are people? Give me a break!
I would indeed like to be privy to why the justices choose the cases they do, but my guess is that would only further erode my confidence in the institution.
Corporations are not "people"...to quote you, give me a break. Read the decision, read the case history on the concept of why the idea of corporate personhood exists. It's not the same as a natural person.
1
There may be a compelling reason to withhold the vote to hear a case from the litigators, who might then be able to game their arguments, but this reason would not apply once the term was over.
Professor Fisher reflects many a lawyers feelings. I too feel the same way, particularly after the Court's selection of some cases, like that of the Bush v. Gore for the calendar. On further deliberation, however, I will not favor the Justices giving reason as to why each voted for or against taking a particular case. We already have too much pressure of the efficacy of the Present determining important matters and the country has suffered comensuratingly for such playing to the crowd here and now! Let the Supreme Court justices decide for the
This is just scratching the surface when it comes to the corruption of the court system.
1
Are you suggesting that we shine a light on one of the darkest institutions of this Republic? That transparency be forced upon the 9 entitled priests that prevent the exercise of our First Amendment rights within a 100 feet of their front door?
Heresy of the shoddiest kind!
Heresy of the shoddiest kind!
2
Instead of knowing the process to decide the cases submitted, it sure would be beneficial to hear the arguments of the 74 they choose. Why aren't the proceedings aired for all citizens to hear?
1
Your suggestion sounds plausible, unless you are aware of the court procedures and understand the SCOTUS work load. Granting Certiorari is usually not a problem. Many cases involve arcane subjects like patent law and bankruptcy procedures. Any disputes between Circuits are automatic.The only way your argument could have any credibility was if you could point to an important case that wasn't granted cert. The bottom line is you can't. The SCOTUS never avoids the big ones. They don't need meaningless paper work.I'll wait for answer to a case they missed.
4
Opening up the Supreme Court's case selection process is in the best interest of democracy. If doing so shines a light on the politics of the court so be it, and perhaps it would reduce the cases the Supreme Court selects for review.
Seventy-five cases per session seems a bit much. Judicious use of unchecked judicial power is as critical to a democracy as the Constitutional checks on the president and the congress.
Seventy-five cases per session seems a bit much. Judicious use of unchecked judicial power is as critical to a democracy as the Constitutional checks on the president and the congress.
3
The Supreme Court's deliberations should be as much subject to the Freedom of Information Act as are other branches of government. There should be a document for the Court similar to the Congressional Record. The Justices serve the people, and the people should know how, even about accepting cases.
8
It is already subject to FOIA as much as other branches of government, i.e. not at all. FOIA contains a deliberative process exemption.
I assume you also think we should get to see all the notes, agendas and discussions from Cabinet meetings and even so-called secret Congressional testimony. Why doesn't the NYT get to just station a reporter in the Oval Office, too, so we can learn everything that is said and discussed there as well. After all, why should the people not know everything, instead of just cherry picked information?
SCOTUS decisions about which cases it chooses to review are as consequential as the decisions themselves. Evidence of this reality doubtless pervades all of American history, but we only need a decade of it to understand the clear truth of such hidden power.
e ought to remember this as we careen along in the roller coaster that, today, masquerades as a presidential election campaign for the leadership of the free world.
www.endthemadnessnow.org
e ought to remember this as we careen along in the roller coaster that, today, masquerades as a presidential election campaign for the leadership of the free world.
www.endthemadnessnow.org
9
Politically this is an obscure issue and one that really only SCOTUS academics might care about. If implemented it wouldn't change behavior but would lead to more distrust, however warranted, of SCOTUS.
We have representative government not direct democracy and the structure reflects that. A more useful article would have discussed whether we have enough Justices or courts to handle a nation immensely larger than when the Founders established SCOTUS.
We have representative government not direct democracy and the structure reflects that. A more useful article would have discussed whether we have enough Justices or courts to handle a nation immensely larger than when the Founders established SCOTUS.
5
How do you arrive at the conclusion that representative government implies that secrecy is OK? Transparency is essential for accountability, without which representative democracy can't work. Otherwise we have to guess whom to vote for. (In the case of SCOTUS justices, their actions reflect on the presidents who appointed them and the senators who confirmed them.)
1
We don't need to know which justice voted to accept which case. We need to know about the choices of elected officials, because such knowledge helps us make a choice, when these people are up for reelection. But since sitting on the Supreme Court is a life-time appointment - how would it help us to know which justice voted to try which case? It wouldn't help us at all, unless our goal is to make the Supreme Court as polarized and dysfunctional as our Congress.
30
Val in Brooklyn. You don't think the SCOTUS is already quite polarized and dysfunctional? With all due respect, isn't the dysfunction already evinced by the Citizen's United ruling? The damage is done.
Could you please clarify who "we" is when you say "we don't need to know"? I'm sure you wouldn't presume to speak for anyone other than yourself, anymore than I would.
Could you please clarify who "we" is when you say "we don't need to know"? I'm sure you wouldn't presume to speak for anyone other than yourself, anymore than I would.
What would these revelations reveal to the people and of what use would they be? The supreme court is a tightly closed and protected group. I would rather there be cameras in the courtroom so the public could actually see how the court arrives at it's impacting decisions.
3
Cameras in the courtroom wouldn't let the public see how the Court decides cases. They aren't decided in oral arguments. They're decided in a private conference each week and the exchange of opinion drafts.
I wasn't suggesting access to the courts private conferences. I was suggesting open courtrooms during oral arguments.
This idea would only make the court more political than it already is. Adding to the politicization of the court would only add to the polarity of the people. Think again, Professor Fisher.
19
Given that once appointed, the Justices serve to a date of their choosing, or their death, it really doesn't matter how a given justice votes on whether or not to hear a case. For lower courts, where there is the possibility of advancement to an upper court, or in some cases, elections to be contested, the information may be actionable. In this situation, you have individuals whose upward mobility in terms of power and stature (at least within the court system) is no more, thus the only purpose here in disclosure would be to further inflame the left/right divide. It seems the court (on both sides) tries their best to minimize the appearance of outside influence and politics (with limited success); and as another commenter points out, for the cases that are heard, we get great insight into their thinking. It seems like a waste of time to have the justices spend time on cases that cannot get the requisite four votes to even be heard.
1
In deciding whether or not to exercise discretionary review, state high courts, such as the Supreme Court of Louisiana, routinely show every member's vote, as well as which members actually participated in the vote. There is no logical or legal reason SCOTUS cannot do the same.
4
The Supreme Court doesn't need to explain why they choose the cases they do because it's obvious. The Extreme 5 outnumber the reasonable members, and they choose cases that they hope will promote the views of their favorite political party. When that changes, the decision pendulum will swing the other way for a change.
8
Appropriate quote from a Supreme Court decision: "Sunlight is the best disinfectant."
8
And it was a Supreme Court Justice who said it.
But that was then.
But that was then.
We already know how they would vote on 95 percent of the cases they end up taking anyway.
The latest Obamacare case was a blatant example of tomfoolery. The fact that it ended up 6-3 proved that it shouldn't have been granted certiorari in the first place.
The latest Obamacare case was a blatant example of tomfoolery. The fact that it ended up 6-3 proved that it shouldn't have been granted certiorari in the first place.
2
I could understand requiring the actual vote information on cases where at least three justices voted in favor of taking a case that was not taken. That requirement would at least alert the bar to the possibility that there was an issue in the case that might be addressed by the court in the future with slightly different facts or on further consideration by one of the judges who did not vote in favor of accepting the case. This could be particularly important it a situation where the grounds for appeal is a difference between the circuits, as a further case might well tip the balance as to whether or not the case should be taken.
However, I suspect that a good many of the cases that are appealed to the court simply don't meet the requirements that must be met before the Supreme Court will take a case and therefore would shed light on very little.
However, I suspect that a good many of the cases that are appealed to the court simply don't meet the requirements that must be met before the Supreme Court will take a case and therefore would shed light on very little.
1
It's a system that has worked as flawlessly as it could, until the court was loaded with ideologue justices.
28
No kidding. Why do the liberals always vote as a single bloc?
2
I figured someone of lesser information would introduce an ideological slant, rather than apply it to both sides. Thank you
5
Come on now the courts have never been flawless. Judges are frequently bribed, though rarely caught.
Silly idea. Think about it, the work load is significant as it is now. In effect what this article asks for is an 'opinion' on each case sent up. The time would be better spent in actually hearing additional cases, not writing opinions as those not taken. As the article indicates the Court is busy enough, why further complicate the work load. If you believe this is a good idea, then you would also believe that every bill in either house of congress deserves an opinion on why it is not heard or brought up. We have enough 'government', let us think about cutting the activates of all branches back. We will have more freedom, not less.
1
You need to read the article again. The writer specifically states that he is NOT asking for any explanation, just how the justices voted.
7
"What you mean 'we,' paleface?" Obviously, this bunch believes that some Americans are more equal than others.
3
Actually, there are many reasons NOT to implement this proposal, but let's just take one.
A member of Congress votes the way some group or another doesn't like. They are targeted during reelection as well as harassed during the remainder of their term of office. Why does this happen? Because it works. People get upset because SCOTUS "legislates" from the bench but don't care which private party or group us actually pulling the strings and running our Congress.
By making vote tallies from SCOTUS public we open the Justices to this same degree of harassment in an effort to influence their deliberations based on public opinion rather than an interpretation of the Constitution. While you may disagree with the court's interpretation of the Constitution in resolving cases they accept, please remember that the court is mostly conservative appointees.
A member of Congress votes the way some group or another doesn't like. They are targeted during reelection as well as harassed during the remainder of their term of office. Why does this happen? Because it works. People get upset because SCOTUS "legislates" from the bench but don't care which private party or group us actually pulling the strings and running our Congress.
By making vote tallies from SCOTUS public we open the Justices to this same degree of harassment in an effort to influence their deliberations based on public opinion rather than an interpretation of the Constitution. While you may disagree with the court's interpretation of the Constitution in resolving cases they accept, please remember that the court is mostly conservative appointees.
3
Unless you're represented by one of a select few lawyers in the SCOTUS bar who regularly appear before the court, your chances of getting review are slim to none, despite the merits.
Unless you have a case which the justices have more or less invited to be filed despite the propriety of hearing it. A fine example was Burwell from the last term in which the plaintiffs had no standing to sue and there was no inter circuit conflict to sort out. At least 4 of the conservative mandarins on the court wanted it heard to gut the ACA by voting for a cert grant but one of them blinked come decision time, as the 6-3 outcome evinces.
Another example was Citizens United with a spate of issues decided by the right wingers that weren't before the district or court of appeals hearing the case.
Opacity works well for dishonest jurists and politicians. Nothing will change.
Unless you have a case which the justices have more or less invited to be filed despite the propriety of hearing it. A fine example was Burwell from the last term in which the plaintiffs had no standing to sue and there was no inter circuit conflict to sort out. At least 4 of the conservative mandarins on the court wanted it heard to gut the ACA by voting for a cert grant but one of them blinked come decision time, as the 6-3 outcome evinces.
Another example was Citizens United with a spate of issues decided by the right wingers that weren't before the district or court of appeals hearing the case.
Opacity works well for dishonest jurists and politicians. Nothing will change.
6
SCOTUS was never supposed to take on any and all cases, but clearly missioned with filtering out those cases that need testing against the constitution, and, although not perfect in this respect, I think it's clear they do get around to addressing cases which clearly need to be, based on the wide impact such cases make. Are you aware of prominent cases that meet this criteria that are being ignored?
2
I think this information should be made available for many reasons like research, statistical analysis, and legal discourse. But I don't think the average person needs to know, or even cares to know. Ultimately that knowledge is not likely to result in any action that would change the way the justices' vote on whether to review a case, or which way they ultimately vote on the cases chosen for review. There are far too many heinous things being perpetrated in society and globally these days for anyone to get all riled up by the way the justices' vote to review Supreme Court cases.
1
Brilliant Idea.
If Congress can write law defining the Supreme Court's exercise of its jurisdiction and set the number of votes for cert, it can surely require that the votes be public.
If Congress can write law defining the Supreme Court's exercise of its jurisdiction and set the number of votes for cert, it can surely require that the votes be public.
Supreme? You must be talking about the "Republican Court" that used to be Supreme before they decided against close elections and appointed George Bush president at the turn of the millennium. Very democratic.
Despite a few odd cases, they appear to be a wholly owned subsidiary of the Republican Party and mostly act accordingly.
Despite a few odd cases, they appear to be a wholly owned subsidiary of the Republican Party and mostly act accordingly.
4
No, No, and NO. Leave it alone. Any change and a chance of influence is entered. Do not fix something that is not broken. Same with the Federal Reserve. As soon as there is a smidgen of an opening, the influence peddlers with stampede the gates. They both need to be able to do their jobs without any chance of covert or overt influence.
2
Most of us would be happy if Justice Clarence Thomas said anything...anything at all...during the arguments before the court instead of remaining perfectly silent for most of his 25 years on the nations highest court.
The Supreme Court's secret justice should tell us what he's thinking once in a while.
The Supreme Court's secret justice should tell us what he's thinking once in a while.
26
Thus your comment illustrates your ignorance of the Supreme Court process. Justice Thomas participates with some frequency in public events, forums, interviews, and the like where he engages others in his philosophy and his thinking. I know it makes many on the left uncomfortable that he chooses to use his words wisely and economically (would it be that our President take a lesson from Justice Thomas from time to time), but as is common knowledge, the oral arguments before the court frequently are for show, and the action really happens in the written arguments. But, I know it makes a great talking point for those on the left...and the irony is delicious!
2
Thomas, J has authored numerous opinions both for the majority and in dissent. To learn more about his thinking, you could review this literature
http://www.oyez.org/justices/clarence_thomas&sub=opinions
http://www.oyez.org/justices/clarence_thomas&sub=opinions
The court should be much more open about many things.
1
As an attorney I could not agree with you more about the main issue, transparency. Thank you Prof. Fisher for writing this article. Men and women who wield such great power over the lives of over 300 million Americans should do it in the sunlight and not be able to hide whenever it pleases them. Judicial independence should come with a willingness to take stands.
Many of this Court's decisions are full of sophistry and pretenses that their personal politics have an honest legal or constitutional basis. I prefer people like Scalia who is openly shows his contempt for the core American value of equality to sneaks like Roberts. At least we know what we are dealing with and are not being misinformed, which makes it easier to remedy what these men of ill will are doing. .
Many of this Court's decisions are full of sophistry and pretenses that their personal politics have an honest legal or constitutional basis. I prefer people like Scalia who is openly shows his contempt for the core American value of equality to sneaks like Roberts. At least we know what we are dealing with and are not being misinformed, which makes it easier to remedy what these men of ill will are doing. .
4
Yet, there is a big difference between what one thinks is a "core American value" and the Constitution. For example, would a flat income tax, which taxes everyone at the same rate, be considered "equality." I suspect many here in the socialist echo chamber would be troubled beyond words by such a scenario. Hence my desire to remedy those on the court who like to invent laws and creatively interpret the Constitution. Sometimes, I even agree with the leftists (and occasionally the conservatives) on the courts in terms of the end result of their decisions. It's the process by which they take it upon themselves to tell the rest of us what the law should be rather than letting Congress and the President do their jobs is what is frequently disconcerting. The ends don't justify the means, regardless of how dysfunctional this President, Harry Reid, and the rest of the Congress is.
The issue is transparency.
I don't know whether or not Scalia is a sneak. But he certainly has a major blind spot. He's all too happy to vote to find a federal statute unconstitutional when he doesn't like the statute. But when he dissents in a decision where the majority finds a statute unconstitutional, the umbrage(!), the outrage(!) that an activist court knows better than elected representatives! He is clueless that interpreting the constitution is and always has been an essentially subjective endeavor. Perhaps the most consistent justice is actually Clarence Thomas in terms of his logic. It's just a shame that his logic, as consistent as it is, is consistently wrong.
For all of the insistence on "transparency", one would think the GOP would be tearing their hair out at the secrecy within the SCOTUS. I guess the transparency is only when the GOP wants everyone to see what the liberals are up to, but conservative agendas are OK to be kept in the back rooms and under cloaks.
4
It isn't right that the Supreme Court only hear the cases it thinks are more important then others. If they have more cases then they can handle and are "back logged" why are they fighting the people that want a common Law court? It would take a lot of burden off the Supreme Court and get rid of back log.
1
I don't get where you get the idea that the Supreme Court is overburdened and unable to take on more cases. They've handled more cases on the merits in past years. There is no basis for the idea that they would take review on more cases if they had more time. While they may be quite busy, they are not snowed under by any means. I know of noone who has ever claimed them to be, including the justices themselves.
Then they should be obligated to hear all cases that come to them. Is that not their job?
Six of the nine justices on OUR U.S. Supreme Court are catholic, including the chief justice. Today the pope spoke to OUR Congress - 515 men and 20 women, 154 of them catholic. The Speaker of the House, who is catholic, invited the pope to speak and OUR Vice President, who was seated behind the pope, is also catholic. All of this would not be an issue if the catholic church and other radical religionists honored America's constitutional directive to keep state and church separate. They do not and the 5-member male, catholic, corporate majority on today's supreme court puts OUR democracy - and all women and men who love them - in danger with attempts to weaken or destroy Roe V Wade, weaken voter rights and generally cater to the financial elite who have taken over OUR government at all levels. Every eligible American MUST vote in the next elections to restore true democracy in America and restore honor in OUR U.S. Supreme Court.
4
Considering the purpose of the US Supreme Court is to interpret law based upon the US Constitution. It is the court of last resort, when the lower court failed to come to a consensus, and need to US Supreme Court to sort it out. This is what the Supreme Court has become.
I would favor a list of cases accepted and denied on an annual basis. If, fro nothing else, know what cases have made it to the highest court. While, at the same time, reform needs to be done at all levels our legal system. There is something wrong when 8,000 petitions are being sent to the highest court. Let alone that the justices have any time to review the petitions.
It was summed up most greatly when Justice Roberts indicated that Congress needs to do a better job with their legislation; referring to the Affordable Care Act and the requirement to purchase insurance. Or, another ACA related decision on what is a ":state" in regards to subsidies. Certainly not Constitution issues, as much as they are poorly written legislation.
People can blame the court fro legislating from the bench (which I have accused them of), and the like. But, more and more legislators, and judges, at all levels, expect the Supreme Court to clean up their mistakes. Which is not the purpose of the US Supreme Court.
I would favor a list of cases accepted and denied on an annual basis. If, fro nothing else, know what cases have made it to the highest court. While, at the same time, reform needs to be done at all levels our legal system. There is something wrong when 8,000 petitions are being sent to the highest court. Let alone that the justices have any time to review the petitions.
It was summed up most greatly when Justice Roberts indicated that Congress needs to do a better job with their legislation; referring to the Affordable Care Act and the requirement to purchase insurance. Or, another ACA related decision on what is a ":state" in regards to subsidies. Certainly not Constitution issues, as much as they are poorly written legislation.
People can blame the court fro legislating from the bench (which I have accused them of), and the like. But, more and more legislators, and judges, at all levels, expect the Supreme Court to clean up their mistakes. Which is not the purpose of the US Supreme Court.
6
Maybe start with a mandatory retirement age or a more defined code of conduct (aka don't duck hunt with a dick)? You know - the small stuff.
3
I like this idea, agree with its premise, and feel strongly it should be implemented as a matter of courtesy to the democracy that the Justices serve.
That said, I suspect that more often than not, the reason a given case is not certified is due to the fact that a majority of justices agree with the appellate court's decision. Certainly, that is the implication when such subsequent history is cited in legal briefing.
Still, knowledge regarding which Justices agreed with the lower court, and which did not, is something to which both Americans and the American justice system are entitled.
That said, I suspect that more often than not, the reason a given case is not certified is due to the fact that a majority of justices agree with the appellate court's decision. Certainly, that is the implication when such subsequent history is cited in legal briefing.
Still, knowledge regarding which Justices agreed with the lower court, and which did not, is something to which both Americans and the American justice system are entitled.
2
A few thoughts:
a) The Supreme Court should hear more cases - everyone deserves
a fair hearing.
b) Perhaps each Justice can be given the right to demand that one appeal
be adjudged.
c) 12 years is long enough to be a Supreme Court Justice - having the
final word on Life/Death cases and National concerns is too much
power for any life-time appointment.
d) Yes, we should know how they vote on hearing possible appeals.
e) Perhaps the votes in deciding their rulings in appeals they have heard
should have to be 6-3 or greater as 5-4 is hardly convincing -
especially when the previous Federal Judges have voted
largely the other way.
a) The Supreme Court should hear more cases - everyone deserves
a fair hearing.
b) Perhaps each Justice can be given the right to demand that one appeal
be adjudged.
c) 12 years is long enough to be a Supreme Court Justice - having the
final word on Life/Death cases and National concerns is too much
power for any life-time appointment.
d) Yes, we should know how they vote on hearing possible appeals.
e) Perhaps the votes in deciding their rulings in appeals they have heard
should have to be 6-3 or greater as 5-4 is hardly convincing -
especially when the previous Federal Judges have voted
largely the other way.
2
I disagree that there are good reasons for any secrecy in the deliberations of the Supreme Court, or for that matter in any part of our government. The purpose of 'secrete deliberations' is to hide the intentions and process of government from the governed: no other possible reason. The justices do not publish their internal debates to hide their ignorance, personal philosophies, and human characters: because the people would not "understand" or appreciate their Superior, or inferior, methods, logic, intellect and character. Which of course is not true, all men are created equal: equally fallible, equally corruptible, equally selfish and equally altruistic. They hide from cowardice, from a belief that they are superior in judgement to the 320 million of us, their obedient servants. We are slaes and puppets of two generation old philosophies of life, government, and law embedded in their failing memories. And we are forbidden to criticize their debates and those verhy philosophies that would be displayed by access to their deliberations. This is the last great bastion of government by the "philosopher kings". An historically spurned and discredited form of government that is contradicted by the Constitution itself, and then embedded in the Constitution, "for the good of the people". We need an Actual Democracy where all who serve in government are chosen directly by the people and are answerable to the people. Where the people vote directly on the laws and officers.
2
"We need an Actual Democracy where all who serve in government are chosen directly by the people and are answerable to the people. Where the people vote directly on the laws and officers."
Sigh, we are not a "democracy" but rather a federal republic. Rather brilliantly designed with 3 branches of government and various checks and balances on power. SCOTUS needs to be above voting as a check to the tyranny of the majority and to be relatively "pure" from the need to campaign and pander as do all other politicians (check the records of judges who ARE elected). But we are not "slaves" or "puppets" to the court. We can, and have, amended the constitution and we have impeached one justice (Chase). Judgements can be overturned and have been.
Sigh, we are not a "democracy" but rather a federal republic. Rather brilliantly designed with 3 branches of government and various checks and balances on power. SCOTUS needs to be above voting as a check to the tyranny of the majority and to be relatively "pure" from the need to campaign and pander as do all other politicians (check the records of judges who ARE elected). But we are not "slaves" or "puppets" to the court. We can, and have, amended the constitution and we have impeached one justice (Chase). Judgements can be overturned and have been.
2
I believe Mr. Duronio is calling for thinly disguised "mob rule". I suppose we could have people vote on the constitutionality of a law or the creation of a law in a "Dancing with the Stars" type competition. Personally, I'd prefer those issues be decided by people who have some knowledge of the underlying subject material, the history of our laws and of the Constitution itself.
2
I don't find this persuasive at all, despite its public-spirited sentiments.
This type of agenda-setting discretion is not unique at all. Of thousands of bills introduced in Congress, House and Senate leadership and committee chairs choose to give hearings to a tiny fraction, and to move even fewer forward for votes. We have no public access to that decisionmaking process, nor should we. That is the correct comparison, rather than the one made in this article.
Knowing the vote totals will help fuel more prognostication on SCOTUSBlog and Twitter, but "transparency" does not automatically translate to actual accountability. For the most part, the public knowing the votes will not actually change justices' behavior. If it does, as other commenters have already said, that influence may be malign, particularly if it effectively locks justices into positions.
There are numerous more effective steps we could take toward greater transparency at the Court -- cameras, for a start -- that would be better than this proposal.
This type of agenda-setting discretion is not unique at all. Of thousands of bills introduced in Congress, House and Senate leadership and committee chairs choose to give hearings to a tiny fraction, and to move even fewer forward for votes. We have no public access to that decisionmaking process, nor should we. That is the correct comparison, rather than the one made in this article.
Knowing the vote totals will help fuel more prognostication on SCOTUSBlog and Twitter, but "transparency" does not automatically translate to actual accountability. For the most part, the public knowing the votes will not actually change justices' behavior. If it does, as other commenters have already said, that influence may be malign, particularly if it effectively locks justices into positions.
There are numerous more effective steps we could take toward greater transparency at the Court -- cameras, for a start -- that would be better than this proposal.
21
We need more light on all the workings of the U.S. Supreme Court.
Rule of law is what we the people make it to be. It is entirely different from science which is rule of fact, which can be duplicated by anyone anywhere with the necessary tools, materials, knowledge and skills. Rule of law structures all of society and our lives from beginning to eld and someimes beyond.
How many people know of the Doctrine of Discovery upon which worldwide colonization was founded beginning in the 1400's AND that it was cited in a 2005 case by Justice Ruth Bader Ginsburg or that rape cannot be a federal crime because it is "local" and only the states can have jurisdiction according to US V Morrison http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law... ? The first, the Doctrine of Discovery was created by the Pope (although which Pope and what year in the 1400s are not clear) and Morrison holds the potential to overturn many laws in which the actions taken are local--what action is not local and what action does not have economic components somewhere in the taking or outcome of the action?
It is not necesary to keep these essentials of our society so removed from our education system, our regular conversations and the world we all share. Rule of lawis far better than rule of bombs, bullets and even fists. Transparency and accountability are needed at all levels of our court systems.
Rule of law is what we the people make it to be. It is entirely different from science which is rule of fact, which can be duplicated by anyone anywhere with the necessary tools, materials, knowledge and skills. Rule of law structures all of society and our lives from beginning to eld and someimes beyond.
How many people know of the Doctrine of Discovery upon which worldwide colonization was founded beginning in the 1400's AND that it was cited in a 2005 case by Justice Ruth Bader Ginsburg or that rape cannot be a federal crime because it is "local" and only the states can have jurisdiction according to US V Morrison http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law... ? The first, the Doctrine of Discovery was created by the Pope (although which Pope and what year in the 1400s are not clear) and Morrison holds the potential to overturn many laws in which the actions taken are local--what action is not local and what action does not have economic components somewhere in the taking or outcome of the action?
It is not necesary to keep these essentials of our society so removed from our education system, our regular conversations and the world we all share. Rule of lawis far better than rule of bombs, bullets and even fists. Transparency and accountability are needed at all levels of our court systems.
1
That would be great, as "the courts are always deemed open." Maybe someone should just dish a while with a few former Supreme Court interns.
2
Ordinarily I look sympathetically on requests for greater government transparency.
This feels uncomfortable to me. Not every dispute has a readily apparent underlying case or controversy, yet that determination is the Constitution's principal limitation on the Court's jurisdiction. Knowing which four justices voted to hear a case, and why, could well politicize the Court and lead to impeachment attempts.
The mere fact of an allegation in this era of hyper-publicity often leads to baseless accusations that become a tidal wave of unaddressable political political anger. Compiling rankings of justices based on which cases they choose to hear -- and why -- will quickly produce accusations of violations of standing. A likely outcome of that changed dynamic is that the Court will be accused of becoming a Council of Ayatollahs, and subject it to external pressure.
I may often not agree with the justices' reasoning, but I (and I think most court watchers) do trust them to not abuse their power, to call balls and strikes as they see them -- even though they most certainly need to have as a diverse as possible an array of political and religious filters -- and to try to protect the integrity of the Court. This proposal would undercut all of that confidence, if not destroy it.
This feels uncomfortable to me. Not every dispute has a readily apparent underlying case or controversy, yet that determination is the Constitution's principal limitation on the Court's jurisdiction. Knowing which four justices voted to hear a case, and why, could well politicize the Court and lead to impeachment attempts.
The mere fact of an allegation in this era of hyper-publicity often leads to baseless accusations that become a tidal wave of unaddressable political political anger. Compiling rankings of justices based on which cases they choose to hear -- and why -- will quickly produce accusations of violations of standing. A likely outcome of that changed dynamic is that the Court will be accused of becoming a Council of Ayatollahs, and subject it to external pressure.
I may often not agree with the justices' reasoning, but I (and I think most court watchers) do trust them to not abuse their power, to call balls and strikes as they see them -- even though they most certainly need to have as a diverse as possible an array of political and religious filters -- and to try to protect the integrity of the Court. This proposal would undercut all of that confidence, if not destroy it.
3
The writer is suggesting that when Certiorari (accepting a case) is denied there should be a statement of explanation. This is a more complex issue than he conveys in the article. Any justice may currently write an explanation which is his/her personal statement, yet in the absence of other such statements, is taken by the public to be the sense of the court.
This link describes a specific incidence, "Alito's strategic denial of Certiorari statements-2012 and 2014."
http://soledadwarmemorial.blogspot.com/2012/07/alitos-certiorari-draft.html
This was a rejection of review of an appeals court decision mandating removal or modification of a Cross on public land , which would normally mean that this decision has been affirmed. This case had been in the courts for 23 years, which included local referendums, and also addressed by federal legislation.
The case is still in negotiation but it is off the public's radar, as the length and complexity is too much to report. There is little argument that Alito's private statement of the reason for refusal to take the case was effective in quashing multiple decisions at the district and appeals levels.
It could well be that the explanations that the writer proposes, as described here, would become a way of muddying the waters that would be counterproductive.
This link describes a specific incidence, "Alito's strategic denial of Certiorari statements-2012 and 2014."
http://soledadwarmemorial.blogspot.com/2012/07/alitos-certiorari-draft.html
This was a rejection of review of an appeals court decision mandating removal or modification of a Cross on public land , which would normally mean that this decision has been affirmed. This case had been in the courts for 23 years, which included local referendums, and also addressed by federal legislation.
The case is still in negotiation but it is off the public's radar, as the length and complexity is too much to report. There is little argument that Alito's private statement of the reason for refusal to take the case was effective in quashing multiple decisions at the district and appeals levels.
It could well be that the explanations that the writer proposes, as described here, would become a way of muddying the waters that would be counterproductive.
1
Much like use of tobacco was demonized not in a day but incrementally over decades, the justices probably fear any justification for more transparency in their operations by stating that they wouldn’t need to EXPLAIN their votes. Once they accepted full transparency of case selection, the next incremental demand logically would be WHY did Scalia vote this way or Ginsburg that way. Better perhaps not to accept the Trojan Horse for fear of what lurks inside.
What possible difference does it really make how each justice voted in this matter? To better inform court watchers who appear for all the world like the guys who used to scrutinize the line of men who stood atop the Kremlin during May Day parades, to try to figure out who would be the next to die? No, the intent clearly is to give ammunition to those who would lambaste specific justices for specific votes in the hope that the force of their shellacking might influence a similar future vote.
Even court-watchers need to eat, but the U.S. Supreme Court makes its own rules about its operations, and somehow I think they’re going to give Mt. Fisher’s argument a pass.
What possible difference does it really make how each justice voted in this matter? To better inform court watchers who appear for all the world like the guys who used to scrutinize the line of men who stood atop the Kremlin during May Day parades, to try to figure out who would be the next to die? No, the intent clearly is to give ammunition to those who would lambaste specific justices for specific votes in the hope that the force of their shellacking might influence a similar future vote.
Even court-watchers need to eat, but the U.S. Supreme Court makes its own rules about its operations, and somehow I think they’re going to give Mt. Fisher’s argument a pass.
4
I just can't buy the basic premise of this piece for the simple reason that in order for the majority of the public (and politicians) to "judge", assess, analyze or whatever the reasons or even simply who voted for or against hearing a case (and out of 8,000 cases, face it, most aren't worthy of the high court's time) would require a far, far more informed understanding of the court, the law and the constitution.
As it is today we have people not reading decisions but thinking they know what they're all about because of a political stand or what they read on Facebook. The lack of historical understanding also shows itself time and again, as, for example, in the Citizens United case where many truly seem to believe that the entire concept of corporate personhood (a term which is also not understood) was crafted entirely by the Robert's court rather than being a principle around for over 100 years in American law. Agree with the decision or not, but at least do so from an informed point of view.
There is no doubt that many would simply see this as a score card on either the liberal or conservative view and use it to chatter about where this or that justice supposedly stands. Yes, they may reject a case on employment rights or corporations or the environment but without knowing the precise details of the question of law involved the public really can't say whether it was right or wrong - yet many will say any case on the environment, for example, should be heard. Pointless.
As it is today we have people not reading decisions but thinking they know what they're all about because of a political stand or what they read on Facebook. The lack of historical understanding also shows itself time and again, as, for example, in the Citizens United case where many truly seem to believe that the entire concept of corporate personhood (a term which is also not understood) was crafted entirely by the Robert's court rather than being a principle around for over 100 years in American law. Agree with the decision or not, but at least do so from an informed point of view.
There is no doubt that many would simply see this as a score card on either the liberal or conservative view and use it to chatter about where this or that justice supposedly stands. Yes, they may reject a case on employment rights or corporations or the environment but without knowing the precise details of the question of law involved the public really can't say whether it was right or wrong - yet many will say any case on the environment, for example, should be heard. Pointless.
3
The author did not offer any good effect that would come from his proposal other than satisfying curiosity.
2
The term "actionable intelligence" comes to mind for me. We'd learn more about the justices, but to what ends? The only beneficiaries as I see it would be journalists covering SC proceedings. Maybe I'm wrong, though.
3
I see that we have the conspiracy theorists out in full force, talking up the perception that secrecy is intended to hide something.
Do you have to provide justification for every single action you do in the course of your day to day job or, are you vested with a level of responsibility to make these decisions as a function of your experience and expertise?
At it's simplest, anyone should be able to realize that the number of cases put before the Court for consideration far exceeds the number of hours that could be dedicated to hearing them. And, if you understand that the Court is vested with hearing cases that have moved upward through multiple levels of judicial review, you would understand that the underlying criteria for choosing a case to weigh is predicated on the scope of effect that the decision would have on the State's population, not just the individuals represented in the case.
In these cases, the Supreme Court choses to hear those issues that impact the many not the few.
Do you have to provide justification for every single action you do in the course of your day to day job or, are you vested with a level of responsibility to make these decisions as a function of your experience and expertise?
At it's simplest, anyone should be able to realize that the number of cases put before the Court for consideration far exceeds the number of hours that could be dedicated to hearing them. And, if you understand that the Court is vested with hearing cases that have moved upward through multiple levels of judicial review, you would understand that the underlying criteria for choosing a case to weigh is predicated on the scope of effect that the decision would have on the State's population, not just the individuals represented in the case.
In these cases, the Supreme Court choses to hear those issues that impact the many not the few.
Indeed. I certainly don't hear the author demanding to know of every policy matter privately discussed at the White House - just so we're "informed", regardless of the outcome.
This is much ink about nothing, or about very little. The overwhelming majority of cert denials are based on the clerks' initial screening of the petition and therefore are unanimous decisions. Since only 4 votes are needed to take the case, Prof. Fisher is speaking to the smaller number of denials in which 1, 2, or 3 justices would grant cert. As he notes, dissents from denial are occasionally published. Prof. Fisher's remedy would add little to transparency.
Sadly, aside from idle curiosity, there is no impetus for transparancy of the acts of a group appointed to their duties for life. As we have no recourse to remove those whose rulings and case-hearing policies we may disagree with, transparancy would only serve as a catalyst for outrage.
10
what you ask for is democratic access to an undemocratic process. what the court rules is public. how it gets there is not. imagine the relief of not having to explain yourself to inquiring minds.
As the least democratic branch of our divided limited powered republic, the Supreme Court of the United States should adhere to the primary ethical obligation of a lawyer to avoid even the appearance of impropriety. But this SCOTUS often fails to do that. With 6 Catholic and 3 Jewish justices the Supreme Court is theologically unlike 74% of Americans. With two of the female justices being unmarried and childless this court is not like many Americans. Unlike the Chief Justice most Americans do not have adopted kids. Unlike one justice most Americans are not a racially colored marriage. Secrecy is the anti-thesis of democracy, liberty and freedom.
4
And yet theology has nothing to do with it. Or shouldn't.
The appearance of impropriety is best exampled by Thomas not recusing himself from ACA cases given his wife's work with Liberty Central
The appearance of impropriety is best exampled by Thomas not recusing himself from ACA cases given his wife's work with Liberty Central
4
We tend to agree with the author, particularly in light of Adam Liptak's NYTimes piece last year on ' in-group bias ' as demonstrated at SCOTUS:
http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-spe...
We would also add that the Court needs to pick up its workload, as it has been taking fewer and fewer cases in recent years:
http://www.nytimes.com/2009/09/29/us/29bar.html
The decline to about 75 cases per year as cited by the author, is approximately 50% of the Court's work product from the early '80s, and a publication of votes that the author advocates might help explain the Court's notable changed volume of decisions.
http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-spe...
We would also add that the Court needs to pick up its workload, as it has been taking fewer and fewer cases in recent years:
http://www.nytimes.com/2009/09/29/us/29bar.html
The decline to about 75 cases per year as cited by the author, is approximately 50% of the Court's work product from the early '80s, and a publication of votes that the author advocates might help explain the Court's notable changed volume of decisions.
7
The power of the Supreme Court has grown in recent years as political conflicts within our society have resulted in a tendency to appeal to the judiciary to resolve the impasses. But the court's more prominent role has harmed its reputation, because the losers in cases it decides have not simply accepted the decision. The response of candidates Santorum and Huckabee to the marriage equality is merely the most recent example of this attitude.
Under the circumstances the court should follow the principle that greater transparency strengthens governmental institutions in a democracy. Publishing the votes on the decision to accept or reject a case will not end controversy. Nothing can do that. But a decrease in secrecy might reduce the growing suspicion that the judges view themselves as unaccountable to the people they serve.
Under the circumstances the court should follow the principle that greater transparency strengthens governmental institutions in a democracy. Publishing the votes on the decision to accept or reject a case will not end controversy. Nothing can do that. But a decrease in secrecy might reduce the growing suspicion that the judges view themselves as unaccountable to the people they serve.
13
Which is why the court should be dragged into deciding matter of social consequence, twisting and turning to find some connection to a constitutional interpretation or right. It has and will continue to cause more havoc than it solves.
The Supreme Court appears to answer to nobody. What if they make a mistake? They are human too.
There is supposed to be a balance between the 3 branches of government---
executive, legislative and judicial---that is basic high school civics.
No one branch should be able to exert absolute power without accountability.
It seems to me that the Court has too much power and too much authority.
The gay marriage decision was an incorrect decision heavily influenced by "political correctness" to give privileged treatment to a small and select
special interest group with a lot of money and political influence.
"Equality" had nothing to do with it. Political correctness run amok.
Again who does the Supreme Court answer to or are they a law unto themselves? Remember that no Supreme Court Justice has ever been elected by a vote of the people. How democratic is that?
Is America a democracy or rule by Judges?
There is supposed to be a balance between the 3 branches of government---
executive, legislative and judicial---that is basic high school civics.
No one branch should be able to exert absolute power without accountability.
It seems to me that the Court has too much power and too much authority.
The gay marriage decision was an incorrect decision heavily influenced by "political correctness" to give privileged treatment to a small and select
special interest group with a lot of money and political influence.
"Equality" had nothing to do with it. Political correctness run amok.
Again who does the Supreme Court answer to or are they a law unto themselves? Remember that no Supreme Court Justice has ever been elected by a vote of the people. How democratic is that?
Is America a democracy or rule by Judges?
I agree with Fisher’s point of seeking transparency in one of the most crucial aspects of our government. It seems to hold the Supreme Court to different standards than what we hold our other branches of government.
We recognize the extreme respect the position demands by the scrutiny during the process of becoming a Justice. Although these positions are for life, they shouldn’t alienate the public by doing things behind closed doors. Fisher’s point about seeing patterns in the voting of specific Justices is valuable information to the public.
The argument that it inhibits the Supreme Courts ability to makes decisions is nonsensical. If a member of the Supreme Court would make a different decision in public and private, then does that person even deserve to be on the Supreme Court? Justices are meant to be extraordinarily fair no matter who is watching.
We recognize the extreme respect the position demands by the scrutiny during the process of becoming a Justice. Although these positions are for life, they shouldn’t alienate the public by doing things behind closed doors. Fisher’s point about seeing patterns in the voting of specific Justices is valuable information to the public.
The argument that it inhibits the Supreme Courts ability to makes decisions is nonsensical. If a member of the Supreme Court would make a different decision in public and private, then does that person even deserve to be on the Supreme Court? Justices are meant to be extraordinarily fair no matter who is watching.
23
Transparency and the Supreme Court? When pigs fly, as the saying goes.
22
The court works reasonable well so why fix something that is not broken regardless if you agree or disagree with their opinions. . Congress should work as well.
2
The second para of this essay says that the Court Decides "whether to undertake major lawmaking." It seems very debatable whether or not the "Madison v Marbury" power the Court assumed to itself to "decide what the law is" equated these days to creating law, as Prof. Fisher contends.
5
The justices hold their positions for life. They are exposed to extensive scrutiny when they are selected and we can pretty much guess how they decide which cases to hear and how they will vote, based on their record. I would love to know the ins and outs of the decision to hear the cases involving Marriage Equality but it wouldn't have changed the result or add anything worthwhile to our experience of justice.
Judges can be impeached and special interest groups do circulate petitions calling for the impeachment of one or all members of the High Court. Can you imagine how emboldened they would be with voting records in their hands? The auditing of potential justices is enough of a circus. Would it actually be better if the circus was extended for years?
The public debate and politicization of voting records would also contribute to the idea that the cards are stacked one way or the other, based on the court's composition at a given time. In that sense, it would, effectively, work against the idea that justice must be done and MUST BE SEEN TO BE DONE.
Transparency is important but it will not mean much if the court becomes so politicized that it cannot do it's job.
Judges can be impeached and special interest groups do circulate petitions calling for the impeachment of one or all members of the High Court. Can you imagine how emboldened they would be with voting records in their hands? The auditing of potential justices is enough of a circus. Would it actually be better if the circus was extended for years?
The public debate and politicization of voting records would also contribute to the idea that the cards are stacked one way or the other, based on the court's composition at a given time. In that sense, it would, effectively, work against the idea that justice must be done and MUST BE SEEN TO BE DONE.
Transparency is important but it will not mean much if the court becomes so politicized that it cannot do it's job.
4
Sigh, I wish Americans knew as much about the workings of SCOTUS as folks in Toronto!
1
I appreciate the sentiments of the argument made here for transparency in this aspect of the Supreme Court's work, but can't say it's persuasive to me overall.
For example, the analogy to Congress is definitely apples vs. oranges. Unlike the entirely voluntary nature of proposed legislation and filibusters, the Court does not choose to receive petitions. Consider also the number of petitions vs. the number of members of the Court. Maybe a more apt analogy would be whether congressional representatives (or their staff as proxies) should be required to make public their filing activities regarding each letter they receive from constituents. Circular file or the representative's desk? Wouldn't that be a fine mess?
Regarding the Court's refusal to hear the capital case in order to save the life of a possibly or probably wrongly convicted man, that set of facts says far more about the wrong-headedness of capital punishment, and the Court's ongoing error in that regard, than it does about the case selection process.
So there's my 2 pesos worth of off-the-cuff thought on this, anyway.
For example, the analogy to Congress is definitely apples vs. oranges. Unlike the entirely voluntary nature of proposed legislation and filibusters, the Court does not choose to receive petitions. Consider also the number of petitions vs. the number of members of the Court. Maybe a more apt analogy would be whether congressional representatives (or their staff as proxies) should be required to make public their filing activities regarding each letter they receive from constituents. Circular file or the representative's desk? Wouldn't that be a fine mess?
Regarding the Court's refusal to hear the capital case in order to save the life of a possibly or probably wrongly convicted man, that set of facts says far more about the wrong-headedness of capital punishment, and the Court's ongoing error in that regard, than it does about the case selection process.
So there's my 2 pesos worth of off-the-cuff thought on this, anyway.
16
There is no more consequential instution to the preservation of our democracy than the Supreme Court, nor is there a less transparent one. I have the greatest respect and admiration for the Court but it should open up its doors to modernity and let the American people see how it functions and help them to understand why it takes the decisions that are so important to all of us!
12
This summer the Supremes ruled on a case involving the AZ Independent Redistricting Commission (AIRC). A state legislator brought the suit, contending only the legislature could draw districts. SCOTUS shot down that lawsuit on the last day of the session. The very next day they took on another case against the AIRC for this upcoming session, with the thwarted, state legislator's wife as a plaintiff. It does make you wonder.
12
As soon as you went into specific cases you answered your own question. You know very well that simply disclosing the way they voted will beg the question "why?" Then the justices will be able to hear 50 cases a year. I don't think there's anyone left who trusts the Court to act fairly. Conservative politics has destroyed the Court's credibility thus you should already know how they will vote on any case they choose to hear.
5
Val in Brooklyn to micki Earth. I agree with your entire comment, and then some. I gave up on SCOTUS a long time ago.
I understand the appeal of the argument for greater transparency and accountability from our public servants, including Supreme Court justices. But I disagree with the argument in this case.
The Supreme Court is vested with authority over most of its docket - the power to decide what cases it will decide. That power is intended to be discretionary - not subject to rules, limits, oversight or regulation, and not required to be proven to be consistent over time or justified and explained.
Our system of separation of powers is subject to complex and intricate checks and balances, each branch of government restricting the powers of the other two. If the public is unhappy with the Court's handling of its docket, the means to address that is by Congress's constitutional power to make certain types of appeals mandatory. Congress has not been shy about enacting docket-regulating legislation over the course of our history.
If the Court were to undertake on its own to explain its decisions whether to consider cases, the practice would inevitably intrude on the Court's own discretion, and therefore the Court's own power - commentators and politicians would pick over and critique the explanations, inevitably putting pressure on the Court's decision processes.
Judicial independence is one of the more fragile elements of our system of separation of powers. It should not be encumbered by extra-legal requirements such as Mr. Fisher proposes.
politicsbyeccehomo.wordpress.com
The Supreme Court is vested with authority over most of its docket - the power to decide what cases it will decide. That power is intended to be discretionary - not subject to rules, limits, oversight or regulation, and not required to be proven to be consistent over time or justified and explained.
Our system of separation of powers is subject to complex and intricate checks and balances, each branch of government restricting the powers of the other two. If the public is unhappy with the Court's handling of its docket, the means to address that is by Congress's constitutional power to make certain types of appeals mandatory. Congress has not been shy about enacting docket-regulating legislation over the course of our history.
If the Court were to undertake on its own to explain its decisions whether to consider cases, the practice would inevitably intrude on the Court's own discretion, and therefore the Court's own power - commentators and politicians would pick over and critique the explanations, inevitably putting pressure on the Court's decision processes.
Judicial independence is one of the more fragile elements of our system of separation of powers. It should not be encumbered by extra-legal requirements such as Mr. Fisher proposes.
politicsbyeccehomo.wordpress.com
20
The purpose of secrecy is to allow the Justices to pass on the importance of the selected cases without tipping their hands regarding their final vote in the case. Your proposal that they need not explain their preliminary votes offers little assurance to the Justices. Pundits like you well know that if Ginsburg votes against cert in a reverse discrimination case that surely means she will vote for it in the end but that she foresees a 5-4 decision against it. If the court takes the case, the Justices will in time learn all the relevant facts and sometimes the outcome is unexpected. The Justices clearly believe that not going on record at an early stage protects their internal deliberations. Every pundit knows this. This column needs to weigh more candid deliberations versus public knowledge. That is the core issue here.
33
The record of preliminary votes on cases the SC does take up is not important since we will ultimately know their individual positions and their reasoning. However, the record of preliminary votes on the cases they DO NOT take is useful information and should be public.
In states where the votes are revealed and made public, when an application for review musters enough votes to be granted for oral argument and a full opinion, the remaining members routinely vote to grant, making it unanimous, so as to avoid just the type of thing you are suggesting could happen. Consequently, your argument is not a valid reason to maintain the secret tallies in votes where certiorari is denied.
Sorry. This is a do-over court. Taking the same cases - like the Texas affirmative action case - over and over until they can chip away as much precedent as they want to and ultimately overturn it.
The press has been slow or naive about picking up on this, but have started to write about it recently.
Too many of these justices have extremist agenda that govern the cases they pick. They need to be on the record from day one.
There is not one thing wrong with them being accountable and that will only happen with full transparency.
The press has been slow or naive about picking up on this, but have started to write about it recently.
Too many of these justices have extremist agenda that govern the cases they pick. They need to be on the record from day one.
There is not one thing wrong with them being accountable and that will only happen with full transparency.
Considering the court only chooses to hear less than 1% of the cases submitted to it, that probably means that any one justice chooses to hear less than 5% of the cases submitted. How much information can be gleaned from 19 "No" votes vs. one "Yes" vote is debateable, but there is a potential problem from the start in revealing the votes of those cases chosen to be heard - it can tip the hand of which justices the arguing lawyers (of which the author is one) should structure their argument or give an indication as to which way the court will rule before it actually does vs. now, when all justices are presumed to be neutral. A polite fiction, but a useful one.
Perhaps a concession to history could prove useful - the votes could be revealed after a considerable period of time and/or or after a justice retires, that could prove useful to history. But immediately revealing certiorari votes will only lead to some rather unfortunate unintended consequences.