Transparency and Policymaking at the Supreme Court

• Publication year: 2016

Transparency and Policymaking at the Supreme Court

Louis J. Virelli III

Stetson University College of Law, lvirelli@law.stetson.edu

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TRANSPARENCY AND POLICYMAKING AT THE SUPREME COURT

Louis J. Virelli III^*

Introduction

I would like to thank the Georgia State University Law Review for including me in this symposium on transparency at the Supreme Court and for providing me the opportunity to respond to Professor Eric Segall's characteristically insightful and thought-provoking article on the topic. I share many of Professor Segall's concerns about the transparency of our public institutions, including the Court. I also agree that some of the Court's practices, particularly with regard to the Justices' papers and cameras in the courtroom, could benefit from greater transparency in light of the Court's role in our constitutional democracy.

I begin to depart from Professor Segall's position, however, when it comes to the Court's certiorari and recusal practices. This is not because I think transparency is necessarily a bad idea in either context, but rather because I think the Court's duties in each of these areas go beyond its traditional judicial role into what I will (somewhat clumsily) call policymaking responsibilities. The process of policymaking, at least as I intend to use the term, involves discretionary value judgments that are not typically seen as a core feature of judging. Judges are fundamentally expected to be neutral arbiters of legal disputes; they apply the facts of individual cases to legal rules to arrive at legal conclusions.¹ Of course, even core judicial processes involve normative questions and judgments. This is especially true with regard to the Supreme Court, which is not only

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our court of last resort, but also the institution that is tasked with answering some of our most divisive and complex national questions. Nevertheless, I contend that there is a difference between the Supreme Court's typical judicial role, represented in its resolution of cases through the public issuance of legally binding judgments and opinions, and the far less common, but very real, exercises of discretionary authority it is required to make as part of its broader institutional mission. Those discretionary decisions incorporate more open-ended considerations of the Court's role in our tripartite government. Such considerations include the public welfare and opinion that are neither as universally accepted in, nor as closely constrained by positive law, as traditional judging. In short, the Justices sometimes must exercise, in the words of Chief Justice John Marshall in Marbury v. Madison, a form of "constitutional or legal discretion" that likens them more to the political branches than the courts.²

But where does this discretionary authority come from? Since we do not normally think of judges as explicitly making policy, it makes sense to first ask whether the Court is in fact permitted to exercise discretion in its certiorari and recusal decisions, and second, whether broad discretion is justified in each of those areas. I suggest that the answer to both of these is an unqualified yes, albeit for slightly different reasons. The Justices' discretionary power over its certiorari decisions has been delegated by Congress, and as such is justified by its legislative pedigree.³ Discretion over recusal decisions is, I argue both here and elsewhere, committed exclusively to the Justices by the text, history, and structure of the Constitution—more specifically by Article III's vesting of the "judicial Power of the United States" exclusively in the courts.⁴ That is not to say that either decision is wholly unbounded. Congress could exercise its power over the Court's appellate jurisdiction to more closely control its docket, and there are constitutional limits—like the Due Process Clause—on the

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Justices' recusal practices.⁵ These limits only highlight the fact, however, that there is a range of choices in each context that is not just left to the Court's discretion, but that is committed to its discretion as a matter of law.

So what does the fact that the Court is sometimes asked to make discretionary "policy" judgments have to do with transparency? The answer may ultimately be nothing—it is entirely possible that transparency is equally well-justified in every aspect of the Court's existence. The Court is, after all, a public institution entrusted with vast power and responsibility. It seems potentially inconsistent with the concept of democratic government to have important decisions made in relative secret, with little or no accountability. This is all true. It does not, however, account for the fact that many of our governmental institutions often make—or at least contemplate—important policy decisions in secret. Congress, our primary policymaking institution, is constitutionally required to "keep [and publish] a [j]ournal of its [p]roceedings," but only to the extent the Congress determines that the proceedings do not "require [s]ecrecy."⁶ Even a roll call vote is only constitutionally required to be reported when "one fifth of those [p]resent" desire it.⁷ Executive officials, including administrative agencies that have been delegated express policymaking authority by Congress, have long been protected from disclosing their deliberations over certain policy questions to the public, even in the face of formal requests for that information.⁸ The most common rationale given for executive secrecy is the need to protect agency deliberations in order to "encourage open, frank discussions on matters of policy" and to "protect against premature disclosure of proposed policies . . . and . . . public confusion that

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might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action."⁹

The question, then, is whether the same rationales that permit secrecy in the legislative and executive branches' policymaking processes apply to the members of the judiciary when they too are tasked with making policy decisions. The Justices make such determinations when they decide whether to grant certiorari or to recuse themselves from cases properly before the Court. The remainder of this essay will explore how the discretionary nature of certiorari and recusal decisions impact the arguments for transparency in both contexts.

I. Certiorari

The Supreme Court currently enjoys virtually unlimited discretion over its own appellate docket.¹⁰ It exercises this discretion through its decisions to grant or deny petitions for writs of certiorari.¹¹ Congress first granted the Court the power to refuse cases on appeal at the end of the nineteenth century.¹² By that point, the Court had fallen several years behind on its existing docket. It implored Congress to provide some relief by authorizing the Justices to reject cases that it did not think merited their attention.¹³ Congress obliged, but the problem of

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an overloaded docket persisted.¹⁴ Congress responded with the Judiciary Act of 1925, which conferred on the Justices "broad discretion to decline to review the vast majority of the cases" presented to it.¹⁵ The 1925 Act did not, however, eliminate all forms of mandatory appellate review for the Court,¹⁶ and the Justices continued to push back against those mandatory appeals. The Court often treated mandatory appellate cases in the same summary fashion as petitions for certiorari. The result was the erosion of the "discretionary-mandatory distinction between certiorari and appeal" and a further practical expansion of the Court's control over its docket.¹⁷ This combination of judicial pressure and practical effect led Congress to effectively remove all statutory impediments to the Court's discretionary authority over its appellate docket in 1988.¹⁸ Since that time, the Court has exercised nearly unfettered control over its caseload, especially its appellate cases.

Congress has never required the Justices to explain their decisions or even to set standards to guide those decisions. The Justices have articulated their own set of considerations for granting certiorari, but have also made clear that those considerations are "neither controlling nor fully measuring the Court's discretion."¹⁹ The Court

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is thus left, as a matter of law and practice, with the authority to decide for itself if a case merits review.

This fact alone, however, does not say much about whether the Justices should have to take the next step of justifying why they exercised their discretion in a particular way. It is one thing to grant a government decision maker wide latitude in reaching its conclusion. It is quite another to allow them to do so without any public explanation. The latter point requires some additional understanding of why judicial discretion is important in the certiorari context.

The predominant reason for granting the Court so much control over its docket was concern about its caseload. Prior to the Act of 1925, the Court was as much as three years behind in its disposition of cases. In a world where cases routinely take years just to get to the certiorari stage, it is at least fair to acknowledge that an additional three years of waiting for a decision from the Justices would be problematic for the Court's reputation and effectiveness. This is particularly important because the Court's democratic legitimacy—its ability to garner public acceptance of its decisions—depends so heavily on public perception.²⁰ Once we recognize that the size of the Court's docket is a significant factor in its ability to fulfill its constitutional responsibilities, we can see why broad discretion over which cases it hears—and whether it should explain its exercise of that discretion—is so important.

Assume that the maximum number of cases the Court can competently hear and decide in a given term is 150.²¹ Now assume that there are 200 cases in a given term...