Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Chief Justice John
Speaker 1: Roberts has always maintained the independence of the federal courts,
Speaker 1: but after the controversy of the Kavanaugh confirmation, it seemed
Speaker 1: to become top of mind for him. Our role is
Speaker 1: very clear. We are to interpret the Constitution and laws
Speaker 1: of the United States and ensure that the political branches
Speaker 1: act within them. That job obviously requires independence from the
Speaker 1: political branches. The Chief did stray from his usual detachment
Speaker 1: from politics by publicly rebuking President Trump for criticizing a
Speaker 1: federal judge who ruled against him, but there was no
Speaker 1: mention of President Trump or now Justice Brett Kavanaugh in
Speaker 1: Robert's year end report on the courts. Joining me is
Speaker 1: Steve Sanders, a professor at Indiana University's Mars School of Law. Steve,
Speaker 1: why did Roberts clearly steer away from the controversy that
Speaker 1: dominated the news? Well, I think traditionally the Chief Justice's
Speaker 1: year end report about the Judiciary focuses more on the
Speaker 1: health of the judiciary itself, current issues affecting its workload,
Speaker 1: current issues affecting the workplace of the federal courts. And
Speaker 1: I think he has confined his comments about what I
Speaker 1: might call separation of powers, that is the role of
Speaker 1: the judiciary versus the executive, to a few well chosen
Speaker 1: yet high profile a sort of public forums where he
Speaker 1: could get attention. This report is somewhat more bureaucratic this
Speaker 1: end of the year report, but it still focuses on
Speaker 1: an important issue. It focuses primarily on issues of incivility
Speaker 1: and a sexual misconduct in the workplace. It notes that
Speaker 1: although studies indicate that although the judiciary does somewhat better
Speaker 1: and compares favorably on that score compared to other government offices,
Speaker 1: it's not perfect. And so the Chief Justice, together with
Speaker 1: what's called the Judicial Conference of the United States, which
Speaker 1: is a couple of dozen federal judges chaired by the
Speaker 1: Chief Justice, is in the process of updating the Judiciary's
Speaker 1: Code of conduct and attempting to provide some new mechanisms
Speaker 1: so that workplace misconduct, workplace harassment, and incivility can be
Speaker 1: more readily reported and dealt with. What this report seems
Speaker 1: to bring up, in my mind, is the problem of
Speaker 1: judicial accountability or the self policing of the federal judges.
Speaker 1: A well known judge on the Ninth Circuit, Alex Kazinski,
Speaker 1: retired after allegations of sexual misconduct, and so no action
Speaker 1: was taken against him, and eight three claim against now
Speaker 1: Justice Brett Kavanaugh were simply dismissed because he became a
Speaker 1: justice of the court. So where is the accountability? Well,
Speaker 1: I think the Kavanaugh case probably has to be regarded
Speaker 1: as a unique issue and a unique question because it
Speaker 1: dealt with conduct of his that occurred for the most part,
Speaker 1: long before he became a federal judge. The allegations were
Speaker 1: aired in hearings and ultimately passed on. This report really
Speaker 1: is focusing more on the courts that do the day
Speaker 1: to day work, the district courts and the appellate courts
Speaker 1: below the level of the Supreme Court. And I think
Speaker 1: this report is an effort to show that the judiciary
Speaker 1: can be accountable. And I think, like many self governing
Speaker 1: organizations that want to preserve their independence, the judiciary is
Speaker 1: one academia, universities and colleges or others. They need to
Speaker 1: show that they're taking the business of self policing seriously.
Speaker 1: And so I think that's what this report, focusing on
Speaker 1: a stronger code of conduct and longer reporting and disciplinary procedures,
Speaker 1: is intended to do. Explain the Supreme Court justices and
Speaker 1: how they don't have to account, it seems to anyone
Speaker 1: for their actions. For example, if they sit on a
Speaker 1: case that people say there may be conflicts on, no
Speaker 1: one judges it. Well, that's right. The judiciary is generally
Speaker 1: supposed to be an independent branch of government, a coequal
Speaker 1: branch of government. But the Supreme Court is really a
Speaker 1: sort of unique institution. There are codes of conduct and
Speaker 1: rules regarding conflicts of interest that apply to the lower courts,
Speaker 1: but not to the Supreme Court, and I think that
Speaker 1: recognizes that the Supreme Court really is a unique institution.
Speaker 1: There are only nine members. All of those members need
Speaker 1: to be confirmed by the Senate and appointed by the President.
Speaker 1: I think the fear is that if Congress or other
Speaker 1: parts of government we're getting involved in the question of
Speaker 1: judicial recusal, that might lead to inappropriately political uses of
Speaker 1: that kind of power. And so we rely on the
Speaker 1: justices to decide themselves when they need to recuse themselves
Speaker 1: from a case, when they need to step aside when
Speaker 1: there might be a conflict of interest. Remember, that's more
Speaker 1: difficult at the level of the Supreme Court, because if
Speaker 1: it's a lower court, you can always just assign the
Speaker 1: matter to another judge on that same court. In the
Speaker 1: Supreme Court, we don't have pinch hitters, we don't have
Speaker 1: substitute justices, we don't have acting justices, and so it
Speaker 1: becomes a very delicate balance to decide what are the
Speaker 1: merits of having the full court here in issue versus
Speaker 1: when do we want to be sure that justices are
Speaker 1: impartial and don't have a conflict of interest. So, Steve,
Speaker 1: I know that you went where people fair to tread.
Speaker 1: That is the appendix of the chiefs report and the
Speaker 1: statistics there. Did you find anything interesting? The Supreme Court's
Speaker 1: workload continues to be not particularly heavy. Not too many
Speaker 1: decades ago, the court was hearing upward of ninety to
Speaker 1: a hundred cases. This here, the Court only heard seventy
Speaker 1: one cases and issued sixty one signed opinions. Compare that
Speaker 1: the courts of Appeals received more than forty nine thousand
Speaker 1: filings just in the past year alone. The federal district
Speaker 1: courts received almost two hundred and eight two thousand. The
Speaker 1: Supreme Court only hears and decides a tiny, tiny fraction
Speaker 1: of all the cases that are being litigated in the
Speaker 1: federal courts, and this underscores the importance of who gets
Speaker 1: appointed to these lower courts, as the Trump administration seems
Speaker 1: to recognize, because the vast majority of lawsuits that affect
Speaker 1: people's lives and rights are decided not by the Supreme
Speaker 1: Court but by the hundreds of district courts and the
Speaker 1: dozen or so federal Courts of appeals around the country.
Speaker 1: That Steve Sanders of Indiana University's Mara School of Law,
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com s. Last podcast. I'm June Brosso.
Speaker 1: This is Bloomberg m HM.