1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:18,320 --> 00:00:22,720 Speaker 1: and on Bloomberg dot com slash podcasts. Chief Justice John 6 00:00:22,840 --> 00:00:26,599 Speaker 1: Roberts has always maintained the independence of the federal courts, 7 00:00:26,640 --> 00:00:30,160 Speaker 1: but after the controversy of the Kavanaugh confirmation, it seemed 8 00:00:30,160 --> 00:00:33,199 Speaker 1: to become top of mind for him. Our role is 9 00:00:33,320 --> 00:00:37,640 Speaker 1: very clear. We are to interpret the Constitution and laws 10 00:00:37,680 --> 00:00:41,400 Speaker 1: of the United States and ensure that the political branches 11 00:00:41,479 --> 00:00:48,120 Speaker 1: act within them. That job obviously requires independence from the 12 00:00:48,159 --> 00:00:52,920 Speaker 1: political branches. The Chief did stray from his usual detachment 13 00:00:52,960 --> 00:00:57,240 Speaker 1: from politics by publicly rebuking President Trump for criticizing a 14 00:00:57,280 --> 00:00:59,880 Speaker 1: federal judge who ruled against him, but there was no 15 00:01:00,120 --> 00:01:04,080 Speaker 1: mention of President Trump or now Justice Brett Kavanaugh in 16 00:01:04,240 --> 00:01:07,120 Speaker 1: Robert's year end report on the courts. Joining me is 17 00:01:07,120 --> 00:01:11,560 Speaker 1: Steve Sanders, a professor at Indiana University's Mars School of Law. Steve, 18 00:01:11,720 --> 00:01:16,000 Speaker 1: why did Roberts clearly steer away from the controversy that 19 00:01:16,240 --> 00:01:20,440 Speaker 1: dominated the news? Well, I think traditionally the Chief Justice's 20 00:01:20,560 --> 00:01:25,240 Speaker 1: year end report about the Judiciary focuses more on the 21 00:01:25,280 --> 00:01:30,080 Speaker 1: health of the judiciary itself, current issues affecting its workload, 22 00:01:30,160 --> 00:01:34,440 Speaker 1: current issues affecting the workplace of the federal courts. And 23 00:01:34,520 --> 00:01:38,080 Speaker 1: I think he has confined his comments about what I 24 00:01:38,160 --> 00:01:40,560 Speaker 1: might call separation of powers, that is the role of 25 00:01:40,600 --> 00:01:43,839 Speaker 1: the judiciary versus the executive, to a few well chosen 26 00:01:44,319 --> 00:01:47,800 Speaker 1: yet high profile a sort of public forums where he 27 00:01:47,840 --> 00:01:51,960 Speaker 1: could get attention. This report is somewhat more bureaucratic this 28 00:01:52,160 --> 00:01:54,400 Speaker 1: end of the year report, but it still focuses on 29 00:01:54,440 --> 00:01:59,720 Speaker 1: an important issue. It focuses primarily on issues of incivility 30 00:01:59,840 --> 00:02:04,240 Speaker 1: and a sexual misconduct in the workplace. It notes that 31 00:02:04,320 --> 00:02:08,080 Speaker 1: although studies indicate that although the judiciary does somewhat better 32 00:02:08,160 --> 00:02:12,280 Speaker 1: and compares favorably on that score compared to other government offices, 33 00:02:12,400 --> 00:02:15,840 Speaker 1: it's not perfect. And so the Chief Justice, together with 34 00:02:15,880 --> 00:02:19,480 Speaker 1: what's called the Judicial Conference of the United States, which 35 00:02:19,520 --> 00:02:21,919 Speaker 1: is a couple of dozen federal judges chaired by the 36 00:02:22,000 --> 00:02:26,359 Speaker 1: Chief Justice, is in the process of updating the Judiciary's 37 00:02:26,440 --> 00:02:29,919 Speaker 1: Code of conduct and attempting to provide some new mechanisms 38 00:02:30,320 --> 00:02:35,680 Speaker 1: so that workplace misconduct, workplace harassment, and incivility can be 39 00:02:35,760 --> 00:02:40,040 Speaker 1: more readily reported and dealt with. What this report seems 40 00:02:40,080 --> 00:02:42,800 Speaker 1: to bring up, in my mind, is the problem of 41 00:02:43,000 --> 00:02:48,120 Speaker 1: judicial accountability or the self policing of the federal judges. 42 00:02:48,560 --> 00:02:51,960 Speaker 1: A well known judge on the Ninth Circuit, Alex Kazinski, 43 00:02:52,240 --> 00:02:56,760 Speaker 1: retired after allegations of sexual misconduct, and so no action 44 00:02:56,919 --> 00:03:01,000 Speaker 1: was taken against him, and eight three claim against now 45 00:03:01,160 --> 00:03:05,320 Speaker 1: Justice Brett Kavanaugh were simply dismissed because he became a 46 00:03:05,400 --> 00:03:09,520 Speaker 1: justice of the court. So where is the accountability? Well, 47 00:03:09,639 --> 00:03:13,400 Speaker 1: I think the Kavanaugh case probably has to be regarded 48 00:03:13,440 --> 00:03:16,440 Speaker 1: as a unique issue and a unique question because it 49 00:03:16,520 --> 00:03:19,840 Speaker 1: dealt with conduct of his that occurred for the most part, 50 00:03:19,919 --> 00:03:24,200 Speaker 1: long before he became a federal judge. The allegations were 51 00:03:24,240 --> 00:03:28,040 Speaker 1: aired in hearings and ultimately passed on. This report really 52 00:03:28,120 --> 00:03:30,399 Speaker 1: is focusing more on the courts that do the day 53 00:03:30,440 --> 00:03:32,960 Speaker 1: to day work, the district courts and the appellate courts 54 00:03:33,000 --> 00:03:35,640 Speaker 1: below the level of the Supreme Court. And I think 55 00:03:35,640 --> 00:03:38,160 Speaker 1: this report is an effort to show that the judiciary 56 00:03:38,280 --> 00:03:42,360 Speaker 1: can be accountable. And I think, like many self governing 57 00:03:42,480 --> 00:03:47,040 Speaker 1: organizations that want to preserve their independence, the judiciary is 58 00:03:47,120 --> 00:03:50,960 Speaker 1: one academia, universities and colleges or others. They need to 59 00:03:50,960 --> 00:03:54,640 Speaker 1: show that they're taking the business of self policing seriously. 60 00:03:55,040 --> 00:03:57,400 Speaker 1: And so I think that's what this report, focusing on 61 00:03:57,480 --> 00:04:02,680 Speaker 1: a stronger code of conduct and longer reporting and disciplinary procedures, 62 00:04:03,200 --> 00:04:08,560 Speaker 1: is intended to do. Explain the Supreme Court justices and 63 00:04:08,880 --> 00:04:12,440 Speaker 1: how they don't have to account, it seems to anyone 64 00:04:12,520 --> 00:04:14,760 Speaker 1: for their actions. For example, if they sit on a 65 00:04:14,800 --> 00:04:18,080 Speaker 1: case that people say there may be conflicts on, no 66 00:04:18,120 --> 00:04:21,560 Speaker 1: one judges it. Well, that's right. The judiciary is generally 67 00:04:21,800 --> 00:04:25,520 Speaker 1: supposed to be an independent branch of government, a coequal 68 00:04:25,600 --> 00:04:28,160 Speaker 1: branch of government. But the Supreme Court is really a 69 00:04:28,240 --> 00:04:32,000 Speaker 1: sort of unique institution. There are codes of conduct and 70 00:04:32,160 --> 00:04:37,320 Speaker 1: rules regarding conflicts of interest that apply to the lower courts, 71 00:04:37,320 --> 00:04:39,640 Speaker 1: but not to the Supreme Court, and I think that 72 00:04:39,760 --> 00:04:44,039 Speaker 1: recognizes that the Supreme Court really is a unique institution. 73 00:04:44,279 --> 00:04:47,480 Speaker 1: There are only nine members. All of those members need 74 00:04:47,600 --> 00:04:51,280 Speaker 1: to be confirmed by the Senate and appointed by the President. 75 00:04:51,760 --> 00:04:54,560 Speaker 1: I think the fear is that if Congress or other 76 00:04:54,640 --> 00:04:56,960 Speaker 1: parts of government we're getting involved in the question of 77 00:04:57,040 --> 00:05:02,479 Speaker 1: judicial recusal, that might lead to inappropriately political uses of 78 00:05:02,520 --> 00:05:05,200 Speaker 1: that kind of power. And so we rely on the 79 00:05:05,320 --> 00:05:09,400 Speaker 1: justices to decide themselves when they need to recuse themselves 80 00:05:09,440 --> 00:05:12,440 Speaker 1: from a case, when they need to step aside when 81 00:05:12,440 --> 00:05:15,240 Speaker 1: there might be a conflict of interest. Remember, that's more 82 00:05:15,279 --> 00:05:17,680 Speaker 1: difficult at the level of the Supreme Court, because if 83 00:05:17,680 --> 00:05:20,159 Speaker 1: it's a lower court, you can always just assign the 84 00:05:20,200 --> 00:05:23,120 Speaker 1: matter to another judge on that same court. In the 85 00:05:23,160 --> 00:05:25,880 Speaker 1: Supreme Court, we don't have pinch hitters, we don't have 86 00:05:25,920 --> 00:05:29,839 Speaker 1: substitute justices, we don't have acting justices, and so it 87 00:05:29,920 --> 00:05:32,919 Speaker 1: becomes a very delicate balance to decide what are the 88 00:05:32,960 --> 00:05:35,800 Speaker 1: merits of having the full court here in issue versus 89 00:05:36,240 --> 00:05:38,440 Speaker 1: when do we want to be sure that justices are 90 00:05:38,480 --> 00:05:41,640 Speaker 1: impartial and don't have a conflict of interest. So, Steve, 91 00:05:41,680 --> 00:05:44,719 Speaker 1: I know that you went where people fair to tread. 92 00:05:44,760 --> 00:05:48,080 Speaker 1: That is the appendix of the chiefs report and the 93 00:05:48,120 --> 00:05:51,599 Speaker 1: statistics there. Did you find anything interesting? The Supreme Court's 94 00:05:51,640 --> 00:05:55,479 Speaker 1: workload continues to be not particularly heavy. Not too many 95 00:05:55,560 --> 00:05:58,320 Speaker 1: decades ago, the court was hearing upward of ninety to 96 00:05:58,440 --> 00:06:02,400 Speaker 1: a hundred cases. This here, the Court only heard seventy 97 00:06:02,480 --> 00:06:06,200 Speaker 1: one cases and issued sixty one signed opinions. Compare that 98 00:06:06,279 --> 00:06:10,680 Speaker 1: the courts of Appeals received more than forty nine thousand 99 00:06:10,880 --> 00:06:13,960 Speaker 1: filings just in the past year alone. The federal district 100 00:06:13,960 --> 00:06:17,359 Speaker 1: courts received almost two hundred and eight two thousand. The 101 00:06:17,400 --> 00:06:21,280 Speaker 1: Supreme Court only hears and decides a tiny, tiny fraction 102 00:06:21,360 --> 00:06:24,279 Speaker 1: of all the cases that are being litigated in the 103 00:06:24,320 --> 00:06:27,680 Speaker 1: federal courts, and this underscores the importance of who gets 104 00:06:27,720 --> 00:06:31,840 Speaker 1: appointed to these lower courts, as the Trump administration seems 105 00:06:31,880 --> 00:06:36,239 Speaker 1: to recognize, because the vast majority of lawsuits that affect 106 00:06:36,279 --> 00:06:39,920 Speaker 1: people's lives and rights are decided not by the Supreme 107 00:06:39,960 --> 00:06:43,040 Speaker 1: Court but by the hundreds of district courts and the 108 00:06:43,240 --> 00:06:45,960 Speaker 1: dozen or so federal Courts of appeals around the country. 109 00:06:46,279 --> 00:06:49,719 Speaker 1: That Steve Sanders of Indiana University's Mara School of Law, 110 00:06:51,279 --> 00:06:54,200 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 111 00:06:54,240 --> 00:06:58,000 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 112 00:06:58,080 --> 00:07:01,960 Speaker 1: and on Bloomberg dot com s. Last podcast. I'm June Brosso. 113 00:07:02,440 --> 00:07:09,640 Speaker 1: This is Bloomberg m HM.