Sorry for Being Reasonable
Or What It Would Mean to Fix the Court
By Gabe Roth, FTC executive director
Ain’t it a great time to fix the court(s)? Court reform is as popular now as it’s been in decades. And it’s about time — both to comport with our historical record and as a means to maintain the public’s faith in the judiciary.
There hasn’t been a major, congressionally mandated reorganization in the structure or function of the federal judiciary in more than three decades. The sort of significant changes that would occur roughly every decade or two since the founding, turning the courts into what we understand them to be today, stopped cold in 1990.
About 30 years ago, Congress curtailed the Supreme Court’s mandatory jurisdiction (1988), wrote new gift acceptance rules for judges (1989) and expanded the number of lower court judgeships (1990). A decade before that yielded the annual financial disclosure requirement (1978) and the rubric for bringing complaints against judges (1980). Congress expanded the grounds for judicial disqualification in 1948 and 1974. Judicial councils were established in 1939. Amid the court-packing debate in 1937, Congress enacted a law permitting retired justices to serve on lower courts. The Judiciary Act of 1925 reduced the Supreme Court’s caseload and expanded circuit courts’ jurisdiction. In 1911 circuit riding ended. The Judiciary Act of 1891 established the courts of appeals. After 1875 certain state court claims could be moved to federal court. In 1869 Supreme Court membership was fixed at nine. Several other judiciary reorganization bills were passed in the decades prior to the Civil War.
Oddly enough, despite the recent congressional inaction on the courts, Congress has made its own operations more transparent and accountable.
Members of the public can watch committee hearings and floor activity live as they unfold. Senators and representatives must release, in a timely manner, extensive details about the trips that third parties pay for. Congressmen and women must post their annual financial disclosures online. They must tell the public within 45 days when they buy or sell a stock. Their staff is covered by a series of anti-harassment, anti-discrimination and anti-retaliation laws. Committee chairs in some cases have term limits.
There’s a certain hubris around the idea that Congress can’t also mandate the judiciary’s rules and procedures. (It can. The recusal statute, the number of federal courts, their locations, etc. — all Congress.) In 1988, Chief Justice Rehnquist successfully lobbied for the passage of the Supreme Court Case Selections Act, so Congress would reduce the Court’s mandatory jurisdiction. Three years later the Chief wrote that the Court would not “express any opinion concerning the [constitutional] validity” of the gift-regulating Ethics Reform Act, as if the justices’ compliance should itself be seen as a gift, not merely a consistent application of how Congress has, since our nation’s founding, updated judicial regulations.
Just because Americans have more faith in the courts than in the other branches doesn’t mean the third branch should get off scot-free. To offer one example, sexual harassment has historically been a larger problem in Congress than in the courts. But it’s still a major issue in the judiciary, so Congress should pass anti-harassment laws that apply to judiciary officials as much as they apply to officials in the executive and legislative branches.
In recent months, the idea that people want to “fix the court” has occasionally been described pejoratively. But it’s not only the historical thing to do; it’s also what large majorities of Americans, left and right, want.
Nearly 70 percent, across party lines, believe that livestreaming in federal appeals courts, including the Supreme Court, should be a requirement. More than 70 percent want to end life tenure at SCOTUS. Nearly 90 percent want the justices to adopt an ethics code. Liberals and conservatives in the legal field complain equally about overwhelming caseloads and the need for more lower courts judgeships.
Three in four Americans say that the Supreme Court should be subjected to as much public scrutiny as the President and members of Congress. Doing so would increase the public’s trust that the branch isn’t being bought or sold, that its judges are acting impartially.
“Fixing the court” is not adding four justices or six justices or 29 justices.
It’s ensuring that members of the third branch are held to the same high standards of ethics and transparency as those in the other two. If the judiciary won’t fix itself, Congress has the right and the ability to implement these fixes, as they’ve done—until recently—throughout U.S. history.
Sure sounds reasonable enough.
