The code also needs to address the conduct of the justices when they are off the bench. The justice’s appearance before organizations that are perceived to be partisan affects public perceptions of judicial impartiality. To avoid the specter of bias, the Code should advise justices to avoid participating in organizations, whether or not traditional political associations, that cast doubt on the justice’s impartiality.
The system for discovering and appropriately responding to financial conflicts of interest also needs to be improved, which would, in turn, improve decision-making about recusal. The justices, like all judges, are required by statute to file financial disclosures. Yet examples exist of judges at all levels of the judiciary sitting on cases in which evidence of a conflict later emerges. One way to avoid a conflict is to require justices and judges to divest individual stock ownership or to place their assets in a blind trust. Practices from the executive branch may provide an example. In recent decades, most presidents, from both parties, have placed their assets in blind trusts or held non conflicting assets like diversified mutual funds, and it is common for incoming executive branch officials to divest assets that would present conflicts.
Accessible and Transparent Decision-Making
“Publicity is the very soul of justice,” and our Constitution and common law have shaped a jurisprudence in which the public has access to all criminal and civil judicial proceedings. Thus, another important facet of judging is communication with the public.
The Supreme Court’s practice of publishing opinions and orders reflects this commitment. Yet, during the past several years, the Court has entered a significant number of cases without full briefing and oral argument. Instead, in what some call a “shadow docket,” the Court has ruled on motions, granted stays, issued unsigned decisions, and taken up cases that have not reached a final decision in the lower court, including in death penalty cases under execution warrant. Likewise, when justices do recuse themselves, they do not regularly explain why.
Furthermore, unlike all the other courts, where rulemaking is a public process with time for notice and comment, the Supreme Court makes its own rules without relying on that process. Lower courts rely on the Rules Enabling Act procedures to gain input from lawyers and litigants about the rules proposed to be altered, but the Supreme Court does not have the benefit of such input unless it does so on an ad hoc basis.
We need the disciplined development of precedent to guide future decisions, as well as disciplined procedure to produce that law. Adhering to the process of full briefing and arguments and publication is an important facet of this obligation, and the departure from these practices is worrisome. We recommend that the Court move away from its ad hoc procedure, explain the reasons for its dispositions, and regularize its rulemaking processes by adopting the procedures that it currently oversees for the lower courts.
Public Access to the Court’s Proceedings
The Supreme Court’s commitment to being accessible is part of its responsible use of power. Accordingly, the public should be able to hear and see the oral arguments of the Supreme Court. An important first step was prompted by the COVID-19 crisis, when the Court relied on telephonic oral arguments and, for the first time in its history, allowed live remote access to the audio of those proceedings. The significant public interest in the audio broadcasts of the Court’s telephonic arguments confirms that the time has come for regular live video and audio access to the Court’s proceedings.
Here, as elsewhere in this report, examples from other jurisdictions are plentiful. Broadcast proceedings through closed systems have become commonplace in many state and federal courts, as well as in courts outside the United States. The literature on this issue is vast, and here we join with many others in calling for ready access—no matter where people live—to see and hear the public proceedings of the U.S. Supreme Court.
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