WEBVTT - What the Chief Justice’s Report Did Not Address

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Chief Justice John

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<v Speaker 1>Roberts has always maintained the independence of the federal courts,

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<v Speaker 1>but after the controversy of the Kavanaugh confirmation, it seemed

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<v Speaker 1>to become top of mind for him. Our role is

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<v Speaker 1>very clear. We are to interpret the Constitution and laws

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<v Speaker 1>of the United States and ensure that the political branches

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<v Speaker 1>act within them. That job obviously requires independence from the

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<v Speaker 1>political branches. The Chief did stray from his usual detachment

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<v Speaker 1>from politics by publicly rebuking President Trump for criticizing a

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<v Speaker 1>federal judge who ruled against him, but there was no

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<v Speaker 1>mention of President Trump or now Justice Brett Kavanaugh in

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<v Speaker 1>Robert's year end report on the courts. Joining me is

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<v Speaker 1>Steve Sanders, a professor at Indiana University's Mars School of Law. Steve,

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<v Speaker 1>why did Roberts clearly steer away from the controversy that

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<v Speaker 1>dominated the news? Well, I think traditionally the Chief Justice's

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<v Speaker 1>year end report about the Judiciary focuses more on the

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<v Speaker 1>health of the judiciary itself, current issues affecting its workload,

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<v Speaker 1>current issues affecting the workplace of the federal courts. And

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<v Speaker 1>I think he has confined his comments about what I

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<v Speaker 1>might call separation of powers, that is the role of

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<v Speaker 1>the judiciary versus the executive, to a few well chosen

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<v Speaker 1>yet high profile a sort of public forums where he

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<v Speaker 1>could get attention. This report is somewhat more bureaucratic this

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<v Speaker 1>end of the year report, but it still focuses on

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<v Speaker 1>an important issue. It focuses primarily on issues of incivility

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<v Speaker 1>and a sexual misconduct in the workplace. It notes that

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<v Speaker 1>although studies indicate that although the judiciary does somewhat better

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<v Speaker 1>and compares favorably on that score compared to other government offices,

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<v Speaker 1>it's not perfect. And so the Chief Justice, together with

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<v Speaker 1>what's called the Judicial Conference of the United States, which

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<v Speaker 1>is a couple of dozen federal judges chaired by the

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<v Speaker 1>Chief Justice, is in the process of updating the Judiciary's

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<v Speaker 1>Code of conduct and attempting to provide some new mechanisms

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<v Speaker 1>so that workplace misconduct, workplace harassment, and incivility can be

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<v Speaker 1>more readily reported and dealt with. What this report seems

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<v Speaker 1>to bring up, in my mind, is the problem of

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<v Speaker 1>judicial accountability or the self policing of the federal judges.

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<v Speaker 1>A well known judge on the Ninth Circuit, Alex Kazinski,

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<v Speaker 1>retired after allegations of sexual misconduct, and so no action

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<v Speaker 1>was taken against him, and eight three claim against now

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<v Speaker 1>Justice Brett Kavanaugh were simply dismissed because he became a

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<v Speaker 1>justice of the court. So where is the accountability? Well,

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<v Speaker 1>I think the Kavanaugh case probably has to be regarded

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<v Speaker 1>as a unique issue and a unique question because it

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<v Speaker 1>dealt with conduct of his that occurred for the most part,

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<v Speaker 1>long before he became a federal judge. The allegations were

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<v Speaker 1>aired in hearings and ultimately passed on. This report really

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<v Speaker 1>is focusing more on the courts that do the day

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<v Speaker 1>to day work, the district courts and the appellate courts

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<v Speaker 1>below the level of the Supreme Court. And I think

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<v Speaker 1>this report is an effort to show that the judiciary

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<v Speaker 1>can be accountable. And I think, like many self governing

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<v Speaker 1>organizations that want to preserve their independence, the judiciary is

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<v Speaker 1>one academia, universities and colleges or others. They need to

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<v Speaker 1>show that they're taking the business of self policing seriously.

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<v Speaker 1>And so I think that's what this report, focusing on

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<v Speaker 1>a stronger code of conduct and longer reporting and disciplinary procedures,

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<v Speaker 1>is intended to do. Explain the Supreme Court justices and

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<v Speaker 1>how they don't have to account, it seems to anyone

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<v Speaker 1>for their actions. For example, if they sit on a

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<v Speaker 1>case that people say there may be conflicts on, no

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<v Speaker 1>one judges it. Well, that's right. The judiciary is generally

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<v Speaker 1>supposed to be an independent branch of government, a coequal

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<v Speaker 1>branch of government. But the Supreme Court is really a

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<v Speaker 1>sort of unique institution. There are codes of conduct and

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<v Speaker 1>rules regarding conflicts of interest that apply to the lower courts,

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<v Speaker 1>but not to the Supreme Court, and I think that

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<v Speaker 1>recognizes that the Supreme Court really is a unique institution.

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<v Speaker 1>There are only nine members. All of those members need

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<v Speaker 1>to be confirmed by the Senate and appointed by the President.

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<v Speaker 1>I think the fear is that if Congress or other

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<v Speaker 1>parts of government we're getting involved in the question of

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<v Speaker 1>judicial recusal, that might lead to inappropriately political uses of

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<v Speaker 1>that kind of power. And so we rely on the

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<v Speaker 1>justices to decide themselves when they need to recuse themselves

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<v Speaker 1>from a case, when they need to step aside when

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<v Speaker 1>there might be a conflict of interest. Remember, that's more

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<v Speaker 1>difficult at the level of the Supreme Court, because if

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<v Speaker 1>it's a lower court, you can always just assign the

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<v Speaker 1>matter to another judge on that same court. In the

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<v Speaker 1>Supreme Court, we don't have pinch hitters, we don't have

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<v Speaker 1>substitute justices, we don't have acting justices, and so it

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<v Speaker 1>becomes a very delicate balance to decide what are the

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<v Speaker 1>merits of having the full court here in issue versus

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<v Speaker 1>when do we want to be sure that justices are

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<v Speaker 1>impartial and don't have a conflict of interest. So, Steve,

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<v Speaker 1>I know that you went where people fair to tread.

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<v Speaker 1>That is the appendix of the chiefs report and the

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<v Speaker 1>statistics there. Did you find anything interesting? The Supreme Court's

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<v Speaker 1>workload continues to be not particularly heavy. Not too many

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<v Speaker 1>decades ago, the court was hearing upward of ninety to

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<v Speaker 1>a hundred cases. This here, the Court only heard seventy

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<v Speaker 1>one cases and issued sixty one signed opinions. Compare that

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<v Speaker 1>the courts of Appeals received more than forty nine thousand

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<v Speaker 1>filings just in the past year alone. The federal district

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<v Speaker 1>courts received almost two hundred and eight two thousand. The

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<v Speaker 1>Supreme Court only hears and decides a tiny, tiny fraction

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<v Speaker 1>of all the cases that are being litigated in the

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<v Speaker 1>federal courts, and this underscores the importance of who gets

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<v Speaker 1>appointed to these lower courts, as the Trump administration seems

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<v Speaker 1>to recognize, because the vast majority of lawsuits that affect

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<v Speaker 1>people's lives and rights are decided not by the Supreme

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<v Speaker 1>Court but by the hundreds of district courts and the

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<v Speaker 1>dozen or so federal Courts of appeals around the country.

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<v Speaker 1>That Steve Sanders of Indiana University's Mara School of Law,

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com s. Last podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg m HM.