Simple Reforms to Improve Transparency and Public Trust in the Federal Judiciary
This piece originally appeared on RStreet.org.
The federal courts are again under a political microscope. The impeachment saga placed Chief Justice Roberts at the heart of politics, the president recently accused the federal judge overseeing the Roger Stone case of bias and a recent congressional hearing highlighted serious harassment claims against a late circuit court judge.
At the Supreme Court, justices this term are considering a number of politically contentious topics, including the possible fate of the Deferred Action for Childhood Arrivals program, Second Amendment rights, abortion restrictions and public aid for religious schools.
Regrettably, these very public disputes are too often heard in very private forums. Many courts—including the Supreme Court—lack sufficient public access. Seating is limited. Audio of arguments is difficult to obtain. Accessing courts records is arduous and expensive. Consequently, a locked-out public is forced to rely on secondhand information about the judiciary that is often inaccurate or, worse, purposefully misleading. This sort of judicial hearsay, combined with the federal court’s resistance to greater transparency, creates unnecessary cynicism about the courts and judges themselves.
These problems are self-inflicted wounds. Congress has largely let the federal judiciary dictate its own transparency rules, with little success. But on Friday, Congress has introduced legislation designed to improve transparency and public trust in the courts. In an era of political ill will, these simple, bipartisan reforms could not come at a better time.
The legislation, titled the Twenty-First Century Courts Act, implements several commonsense changes. The first change is the simplest: The act would make it easier for the public to view important court proceedings. Under the proposed law, public appellate court hearings will have audio livestreamed on the internet. This change would have the most impact for the Supreme Court. Currently, unless you are one of the lucky few to wait in line for hours for the chance to grab a ticket to view the proceedings live, you are left only with a transcript, which is not released until later in the day. If you want to listen to Supreme Court hearings, you must wait until the end of the week when recordings are released.
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Livestreamed hearings offer numerous benefits. They give the public unfiltered access to a courtroom whose decisions have the potential to affect nearly every corner of society. They would also make plain the seriousness and respect judges have for both the complex issues before them and their colleagues. These benefits would build public confidence in and understanding of the judiciary, a universally supported outcome that reflects the goal of several bipartisan reforms proposed in prior Congresses.
But appellate courts are not the only courts to see positive changes from this legislation. The bill also tackles the outdated, inefficient and costly Public Access to Court Electronic Records (PACER) system. The current system—used by both federal trial and appellate courts—typically charges users 10 cents per page to download and view online public court filings. This paywall often prevents researchers and the public from accessing public filings. The Twenty-First Century Courts Act would make PACER free for nearly all users. It would also require the courts to update the online system to make it easier to search for documents. These changes—previously supported by members of Congress across the aisle—represent another important step to improving judicial transparency.
In addition to these long-needed transparency measures, the bill would direct the Supreme Court to write and make publicly available a code of conduct that the nine justices would abide by, similar to the Code of Conduct for United States Judges to which all other judges are accountable. Finally, the bill would modernize the financial disclosure system for federal judges by requiring that those disclosures be posted online, as the disclosures of members of Congress are, and would require brief explanations for recusal decisions made or not made by federal judges.
These measures would go a long way toward boosting public trust in the courts and, by extension, safeguarding the legitimacy of the decisions made by judges of those courts. These commonsense, pro-transparency and pro-accountability measures have the added virtue of being previously introduced through both Republican and Democratic bills as recently as the last Congress.
The public is best served when it has access to each branch of its government. The judiciary is no exception. Easier access to live hearings and publicly available court records, in addition to disclosure requirements and basic ethics rules similar to those followed by most federal judges, would go far to enhance public trust and forestall other, more drastic reforms to the federal judiciary.
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