25. Judicial Independence vs. Judicial Accountability

The debate over whether individual Justices have behaved appropriately in specific cases underscores why it's so important for the Supreme Court as an institution to be more accountable

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

At least from the bench, it was a fairly quiet week at the Court. The Justices held the last four scheduled arguments of the October 2022 Term; handed down no decisions in signed cases; and granted two new cases for next Term (neither of which are especially high-profile). Last Monday’s Order List included another dissent by the three Democratic appointees from the denial of certiorari in a criminal case, this time about ineffective assistance of counsel in a capital case. Justice Sotomayor’s opinion in Burns v. Mays is worth a read, if for no other reason than as another reminder of how far the Court has come in five years (indeed, this is the exact kind of ineffective assistance claim to which Justice Kennedy tended to be sympathetic).

The relatively quiet week on the bench was counterbalanced by another noisy one away from it. In addition to new stories about alleged misbehavior by several of the Justices, Chief Justice Roberts formally responded to an invitation to testify before the Senate Judiciary Committee by declining (based on “separation of powers concerns and the importance of preserving judicial independence”), and by attaching a series of (undated) ethics principles with which the Justices have (apparently) unanimously agreed to attempt to comply. (All 11 Democrats on the Senate Judiciary Committee responded to Roberts’s letter by requesting responses to a series of written questions.)

And on Friday, the Wall Street Journal published an interview (of sorts) with Justice Alito in which the Justice not only publicly insinuated that he has a good idea who the Dobbs leaker is (and that it’s someone hostile to the Dobbs majority), but also repeated his charge that those who are criticizing the Justices and their behavior are simply seeking to delegitimize the Court through any means necessary. Quoting from the Journal:

It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”

In a part of the piece in which the interviewers appeared to be speaking for themselves, they described Alito’s comments as suggesting that “The court’s attackers clearly seek to poison the well, but to what end?” Alas, the piece never even contemplates the possibility that any of the Court’s or the Justices’ behavior might warrant criticism. Suffice it to say, at the very least, the headlines around the Court have continued to provoke reactions about the Justices and their conduct—whether strongly critical or strongly supportive ones.

This week should be even quieter at least on the bench. With oral arguments done for the Term, the Justices’ attention will turn to the remaining decisions in merits cases. We expect a regular Order List from Friday’s Conference at 9:30 ET, but no decisions in argued cases are expected until next Thursday, May 11. There’s also a pending emergency application from Florida death-row prisoner Darryl David Barwick seeking to block his execution (currently scheduled for Wednesday), but it’s hard to see how this one is likely to meet with any more success than similar requests from earlier this Term.

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The One First Long Read: Judicial Independence vs. Judicial Accountability

The swirl of media reports about unseemly (or seemingly unseemly) behavior by the Justices has re-solidified two consistent camps within contemporary public discourse: those who believe that virtually all of these stories identify appalling misconduct by Justices acting in bad faith who ought to be harshly disciplined for their behavior; and those who believe that virtually all of these stories are clumsy attempts by progressives to discredit the Court now that the conservative majority has become ascendant. Indeed, one conservative columnist went so far as to claim that many (if not most) of those seeking to reform the Court are not motivated “by a genuine conviction that with the right procedural adjustments, the Supreme Court can recover its supposedly lost legitimacy.”

Perhaps I’m an outlier, but that’s exactly what motivates most of my writings about (and criticisms of) the current Court. Thus, in this week’s “long read,” I want to offer three related arguments about the endless feedback loop in which we currently find ourselves—and how we might get out of it:

First, part of why every new story about a Justice’s supposedly unethical behavior does nothing more than sort us into our usual camps is because there is no meaningful accountability mechanism for when Justices cross whatever the relevant ethical lines happen to be. Short of impeachment (or political pressure to resign in the face of potential impeachment, as in the case of Justice Fortas), even behavior that we all agree is unethical has no extant remedy; indeed, we’re not even entitled to learn about it. That’s why some of these media stories hit so hard; in this context, the media is serving as a de facto inspector general. And when Justices are amending their prior financial disclosure statements in response to these media reports, it’s hard to just wave our hands and say “there’s nothing to see here.”

In contrast, in a world in which the Court felt (or, indeed, was) obligated to engage in meaningful internal auditing of the Justices’ behavior, there’d be less room for the now-typical reactions from the two ends of the spectrum. Everyone makes mistakes (especially where financial disclosure rules are involved), but if there was reason to believe that honest mistakes were being identified and remedied by the Court’s own internal processes, there’d be less reason for hysteria when the media breaks news of a five-year-old property sale (or a 20-year-old baby shower). On the flip side, there’d be less of an ability for defenders of the Justices to try to dismiss episodes in which the Court’s internal processes had identified (and rectified) errors by the Justices.

No internal process will be perfect in these respects, but we ought to at least acknowledge that part of why we’re stuck in the mud here is because there’s no such mechanism today; these claims get litigated only in the court of public opinion. As a result, no consequence comes to Justices who misbehave, and folks on the outside become increasingly persuaded of their priors in one direction or the other. We have to do better—and we can.

Second, many of the Court’s louder defenders have argued against any effort to increase the Court’s accountability on the ground that it would be unconstitutional—or, at the very least, that it would “raise separation of powers concerns,” as Chief Justice Roberts wrote to Senator Durbin last week. But the separation of powers is a two-way street. The Constitution creates three independent branches of the federal government, none of which are meant to be unaccountable to the others. As James Madison famously wrote in Federalist 51, “ambition must be made to counteract ambition.” Thus, the same Constitution that protects the Justices from political pressure by ensuring their service during “good behavior” gives to Congress the power to decide what “good behavior” is (and isn’t), and to remove judges and Justices who fail to meet that deeply subjective and ambiguous constitutional floor. (See my prior discussion of the impeachment of Justice Samuel Chase.) The idea that Congress lacks any means of articulating what is (and isn’t) good behavior, or of requiring that the Court provide some accounting of whether the Justices are living up to those standards, is wanting for both historical evidence and common sense.

Part of the problem here, which I’ve written about repeatedly in this newsletter (and in detail in the book), is how different today’s Court’s relationship with Congress is compared to its predecessors. Here are just some of the ways in which Congress has previously exercised authority over the Court:

1. Completely eliminating the Court’s 1802 Term (see the trivia, below).

2. Twice taking seats away from the Court (in 1801 and 1866) to prevent the incoming (or current) President from filling them.

3. Taking away the Court’s jurisdiction in March 1868 to hear a pending appeal after the Justices had heard oral argument.

4. Requiring the Justices to “ride circuit,” including long after circuit riding had stopped serving any substantive purpose (and after Congress had created circuit courts to replace them).

5. Refusing, for decades, to fund the Justices’ travel while riding circuit.

6. Refusing to give Justices pensions until after the Civil War (and then cutting those pensions in half in the 1930s).

7. Requiring the Court to hear every appeal within its jurisdiction until 1891.

8. Refusing to give the Justices their own building until former President (and Chief Justice) Taft finally pushed it through in the late 1920s.

9. As part of a 1964 statute raising the pay of a wide array of federal officials, giving the Justices 40% less of a raise than all other federal judges—which was meant by at least some members as a public expression of dissatisfaction with some of the Court’s rulings.

Other examples abound. The relevant point is that, if none of these moves unconstitutionally interfered with the separation of powers, it’s not obvious why a statutory accountability mechanism imposed on the Justices necessarily would. That’s not to say that the Constitution is irrelevant here; I do believe that it would be unconstitutional for Congress to give some other body the power to review the Justices’ conduct; Article III creates “one supreme court,” not two.

The Old Senate Chamber in the U.S. Capitol, which Congress leant to the Supreme Court to use for its official business from 1860–1935

But take, as one possible way forward, the bill introduced last week by Senators King (I-ME) and Murkowski (R-AK). Rather than prescribing ethics rules and setting up some kind of external enforcement mechanism, the bill simply requires the Court to formally adopt rules and to create its own internal process for policing adherence thereto (including the creation of an ombudsperson to oversee compliance). The central conceit of the bill is that the Justices can decide for themselves what the rules will be and who will monitor compliance with them; they just have to create rules and pick somebody.

Then, if that process reveals a Justice who is repeatedly violating the rules, or who does so in an especially egregious manner, Congress would have the information it needs to decide whether to pursue its one constitutional remedy—impeachment. Reasonable folks may disagree about whether the King-Murkowski approach is the best one here; I’m not suggesting that it is. My point is only that the breezy suggestions that even this would raise constitutional problems seem impossible to reconcile with both the rich history of congressional checking of the Court and the need for Congress to have to have some mechanism for being able to establish the factual predicate for its (undisputed) impeachment power.

Third, and perhaps most counterintuitively, adopting some kind of accountability mechanism is not just in the interests of those who are convinced that some number of the current Justices are regularly transcending the rules (such as they are); but also of those who are just as convinced that they are not. After all, it’s one thing for the Justices’ own former clerks and close personal associates to be the ones most loudly and publicly defending the propriety of their former bosses’ (and close friends’) behavior; those not inclined to give the Justice at issue the benefit of the doubt are unlikely to react any differently to his close confidantes. But if the story comes out instead as “Justice X was determined by Court officials to not have violated Rule Y,” or “Justice A amended their prior disclosure form in response to Court officials’ conclusion that their failure to disclose a specific transaction violated Rule B,” I have to think it would hit differently—as a bigger deal in the latter case, and as little (to no) deal in the former. Putting the matter slightly differently, I don’t think it’s a coincidence that some of the sharpest debates about the Court’s legitimacy are occurring at the same time as the Court appears to be as un-accountable as it has been at any prior point in its history; visible accountability is a powerful means of reinforcing legitimacy.

I harbor no illusion that my views are especially nuanced, or that they’re the only way to think of the mass of issues swirling around the current Court when it comes to the Justices’ ethics. And I suspect that, like many of my views about institutional reform, these will come across as woefully insufficient to some and radical overreaching to others. Fair enough. But it sure seems incumbent upon all of us to think hard about why each of these ethics-related stories produces the same reactions from the same camps—especially when some of them really do seem to be serious, and others seem … less so. To me, at least, not having any neutral yardstick against which to measure the Justices’ conduct in each instance is a big part of the problem, even if we might have a really hard time agreeing about what the yardstick should consist of, or by whom it should be wielded. Judicial independence is a critical constitutional consideration, but so is judicial accountability.

To quote the old (rhyming) Russian proverb, trust, but verify.

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SCOTUS Trivia: The Missing Term

Before I was a SCOTUS nerd, I was a baseball nerd. That meant baseball statistics (one of my favorite trivia questions: who holds the all-time Major League record for batting average as a rookie?), but it also meant baseball history. And, at least before the 1994 season-ending strike, one of the weirdest gaps in baseball history was the 1904 World Series—the only one (again, prior to 1994) that was never played.

Although the first World Series between the champion of the established National League and the upstart American League had been played in 1903 (arranged by the teams, not the leagues), the owner and manager of the New York Giants (which won the 1904 NL pennant going away) both thought it beneath their team to have to play the champions of the “inferior” American League (the Boston Americans, later Red Sox). So they just … declined. Ironically, public backlash to the Giants’ refusal led to the formalization of the World Series as a compulsory yearly event, and led to the competition being administered jointly by the leagues rather than by the participating teams. And the rest (sorry, 1994) was history.

I’m reminded of the missing 1904 World Series whenever I teach the Judiciary Act of 1802—the Democratic-Republicans’ backlash against the Federalists’ efforts to install Federalist judges across the federal judiciary during the lame-duck period following the Election of 1800. One of the outwardly procedural (but clearly substantive) moves that the 1802 Act made was to “change” the Supreme Court’s annual sittings—by consolidating from June and December sittings to a single annual sitting beginning each February. Because the Act was enacted on April 29, 1802, it had the effect of cancelling the Court’s entire 1802 calendar, sending a hard-to-miss message to the Court (which would soon consider the constitutionality of the 1801 Repeal Act in Stuart v. Laird) about Congress’s intentions.

The political hardball aside, the annual February Term lasted from 1803–27, when Congress moved it up to the first Monday in January. In 1844, Congress moved the Term up again to begin on the first Monday in December. Then in 1873, it moved the Court’s annual Term to the second Monday of October. In 1916, Congress finally settled on the first Monday of October as the official start date of the Court’s annual Term—a tradition that has persisted from October 1917 through the present, but one that remains, like so much else about the Court, largely subject to the control of the political branches.

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Happy Monday, everyone! I hope you have a great week.

Oh, and the trivia answer is “Shoeless Joe” Jackson, who hit .408 for the 1911 Cleveland Indians (and yet didn’t win the AL batting title).