The normative question of “celebrity” and the Justices

Thanks to the Wall Street Journal blog, I have now read Professor Richard L. Hasen’s innovative Social Science Research Network article entitled Essay: Celebrity Justice: Supreme Court Edition. You ought to read it too! As you may know, SSRN allows you to download such things for free.

Here is the abstract of this fascinating and generally excellent paper published on May 30, 2015:

It is not your imagination. Supreme Court Justices are in the news more than ever, whether they are selling books, testifying before Congress, addressing a Federalist Society, or American Constitution Society event, or just talking to a Muppet on Sesame Street. The number of books about the Court and particular Justices continues to grow. Websites are now devoted to tracking the Justices’ movements as they crisscross the country (and the world) speaking to various audiences. Justice Ruth Bader Ginsburg is even promoted on T-shirts as the “Notorious R.B.G.,” a riff on the name of famous rap artist Notorious B.I.G. She will soon be the topic of a biopic staring Natalie Portman.

That Supreme Court Justices have become celebrities is not news. Indeed, Justices’ public statements about same-sex marriage or Bush v. Gore often get extensive coverage, and extrajudicial comments on issues in pending cases sometimes lead to (ignored) calls for judicial recusal. However, until now no one has quantified the increase in the number of publicly reported events and interviews done by Justices overall and which Justices engage most reported extrajudicial speech.

Using an original dataset of reported instances of Supreme Court Justice extrajudicial appearances and interviews from 1960 to 2014, I find that the amount of reported extrajudicial speech has increased dramatically, especially in the past decade. From 1960-1969, research identified 196 publicly-reported appearances or interviews by all the Justices combined. This number fell by half (to 95) in the 1970s. From 2005-2014 it rose to 880, a nine-fold fold increase over the 1970s. The data show close to a doubling of the number of reported appearances from the 1970s to the 1980s and from the 1980s to 1990s, and then more than doubling of the number of reported appearances from the 1990s to the 2000s. While a small part of that discrepancy between old and new rates of appearances may be due to research limitations as to older news sources, most of the discrepancy appears due to the great increase in the number of reported public appearances by Justices, driven in part by the swelled number of media outlets looking to interview and report on the Justices.

Further, not all Justices are created equal when it comes to Celebrity Justice. John Marshall Harlan, had a mere 4 reported appearances or interviews from 1960 until he left the Court in 1971. Five Justices had over 175 reported appearances or interviews: Stephen Breyer (250), Ginsburg (206), Anthony Kennedy (179), Scalia (199), and Clarence Thomas (192). Dividing the number of appearances by the number of years a Justice was on the Court from 1960 until 2014 yields a “Celebrity Index.” In that Index, Justice Sonia Sotomayor is the highest scoring celebrity Justice, with a score of 13.8 annual reported appearances, followed by Justice Breyer, with a score of 12.5. Nine of the top ten Justices in the Index are current Supreme Court Justices. Finally, not all types of appearances are the same. Some Justices are much more likely to give interviews than others. Justice Sotomayor has given the largest percentage of interviews, and Justice Kennedy the smallest.

This Essay proceeds in three parts. Part I sets out the evidence of the rise of Celebrity Justices and the variations among Justices. Part II discusses methodological concerns. Part III briefly reflects on the normative question whether the rise of the Celebrity Justice is good or bad. I argue that the answer is mixed, but the trend of public appearances and interviews likely will continue to grow in coming years thanks to a drastically changed media landscape and a politicized Court.

While the professor addresses the normative question of whether public appearances by the Justices and the attendant “celebrity” is good or bad, he does so in the typical academic fashion. That is, he rides the fence.

I don’t want to ride the fence. Briefly, here is my take:

* The Justices are public officials in the best sense of those words and the Justices do the Court and the lay public a great service by being open, candid and frank when they appear publicly. That is particularly true when they speak to real people as opposed to appearing in controlled and functionally safe settings like giving prepared talks at law schools or to bar groups.

* The public is fascinated by the Court and the Justices. We are fortunate that is true now, and has been true for a long time.

* I would argue that Justice Sonia Sotomayor has done more good for the Court than any other Justice in the history of the Supreme Court by giving interviews, by hanging out with Muppets on “Sesame Street” or by dropping the Times Square ball on New Year’s Eve. By offering the public a chance to see her as a real person, warts and all, she provides the public valuable insights into the humanity of the Justices. I am absolutely convinced that the public’s trust in the Supreme Court is proportional to the perception that the Justices refuse to consider themselves elites above the fray.

In short, while Professor Hasen uses the term “Celebrity Justice” as a seeming sneer, I prefer the term “Open Justice.” But, then again, I am a simple-minded romantic when it comes to transparency.

RGK

Please help me! How should PACER be funded?

For those of you, like me, who are huge supporters of PACER, the sister system CM/ECF, and the issue of transparency more generally, please read Brian Browdie’s great article entitled Why Pacer should (and should not) be like Edgar, Quartz (November 24, 2014).*  Transparency advocates want PACER access to be free. But there is a problem (nothing is “free”), and I want your help in addressing that problem.

First, you need to know the basics. Here they are:

* “Pacer holds records for roughly 43 million cases, according to the Administrative Office of the US Courts, which manages the database.”

* “In practice, Pacer’s fee structure means that three-quarters of people who use the database pay nothing.”

* “Pacer has about 1.6 million user accounts, but most of the 500 million requests the database receives annually come from law firms; commercial publishers such as Reed Elsevier, Bloomberg and Thomson Reuters; and the Department of Justice (DoJ). These and other power users accounted for about 70% of Pacer’s $146 million in revenue in the fiscal year that ended on Sept. 30, 2013, according to the Administrative Office.”

*  “As the chart[s] below shows, [the revenue is] used to cover outlays for the filing system, CM/ECF ($32.1 million); video monitors, audio and other electronica that courts need to stage trials in the 21st century ($31.5 million); and the telecommunications, broadband internet and security systems that allow access to 197 databases around the country but keep hackers at bay ($27.5 million).”

pacer_users

 

 

pacer_fees

Second, what I would like to know from you is this: Assuming public access to these records is a public good that should come as close as possible to being “free” to the general public and perhaps academics, how would you propose that PACER be funded (a) assuming the federal judiciary must maintain roughly the same revenue stream from PACER that it receives now and (b) assuming that Congress will not fund PACER (or the judiciary’s related revenue stream) from appropriated funds?

 

Trust me–don’t quibble with the “a” and “b” assumptions built into the question. They are real life constraints.

I look forward to your answers while simultaneously wishing you a happy Thanksgiving.

RGK

*H/t How Appealing.

Remembering my day with John Seigenthaler

What is the motivation for my blog and my Jihad for judicial transparency? I can’t blame it on John Seigenthaler, but I will say that he started me thinking about how opaque the federal judiciary has become. Mr. Seigenthaler died Friday. For me personally, there was a degree of irony in his date of death. There was also sincere sadness on the passing of this iconic figure. He had touched my life in a significant way.

But, first, for those of you who have no clue about him, I urge you read Mr. Seigenthaler’s interactive obituary on the The Tennessean. It begins this way: “John Seigenthaler, a legendary Tennessee journalist, intimate confidant to two near-presidents and fierce advocate for racial equality, died Friday.”

When I was the Chief Judge of our District (1999-2004), I had the opportunity to spend a day with Mr. Seigenthaler in Chicago together with nine other judges and ten journalists.  This was the first of a series of regional “Justice and Journalism” conferences. The conference was held on the campus of Northwestern University and jointly sponsored by the First Amendment Center, the Judicial Branch of the Judicial Conference of the United States and the Northwestern Center of the Advanced Study of Free Expression. The report of the conference is here. It is worth reading.

Mr. Seigenthaler was a wonder. He exuded credibility in a way that I am unable to describe in words. He had obviously studied the judges and journalists. I remember that he had an anecdote about each of the judges regarding high-profile cases they had handled. He wondered aloud how the journalists could have covered those cases better and more accurately and how the judges might have helped with that endeavor. It was clear that he believed more openness from judges was necessary. He also took pains to educate the journalists on the special needs of the courts. He understood that the courts were different from other organs of government and he believed that journalists needed to have a realistic understanding of those differences. It was an eye-opening day for me.

At the end of the day, the judges and journalists drew up a list of things they might agree upon to open the courts to better reporting. The report of the conference referenced above lists some of those things. Among them, was the “streamlining of access to information, including a greater reliance on the Internet to make everything from court dockets and rulings to oral arguments available online.” I am proud to say that our little federal court in flyover country became a national leader in doing so. See, e.g., Richard G. Kopf, The Courts, the Internet, E-Filing and Democracy, 56 U.N.B.L.J. 40 (2007).

I flew back to Nebraska that night with my mind spinning.* Mr. Seigenthaler had started me on a journey. Although far too late, it behooves me say “thank you” to this great man. That’s the least I can do.

RGK

*As an aside, I shared a car to the airport with then Chief Judge Loken of the Eighth Circuit. I did not know the Chief very well. Frankly, given his no-nonsense reputation and his remarkable biography, I was afraid of him. The car ride dispelled my fear. What a neat guy.

On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”

RGK

Can judges be too public?

Charles Lane (an editorial writer who attended Yale Law school) has written a piece in the Washington Post that deserves reading. A reader, who is a lawyer, called my attention to the article, and I thank the reader for doing so.

The piece criticizes Judge Posner for being too public. While I sure as hell don’t compare myself to Judge Posner in any form or fashion, I would appreciate it if readers would review Mr. Lane’s piece about Judge Posner’s penchant for being public and apply Lane’s critique to this blog. After that, I would welcome hearing from readers about what they think. Truly, I am not trying to gin up discussion. Since this blogging gig is new to me, I am sincerely interested in what others think about the important points made by Mr. Lane.

RGK

Judicial transparency in the operation of the federal district courts

I am a big fan of becoming utterly transparent when it comes to operating the federal trial courts.  See, e.g., Richard G. Kopf, The Courts, the Internet, E-filing and Democracy, 56 University of New Brunswick Law Journal 40 (2007).  So are my fellow Nebraska judges. In this post, I will do two things. First, I will briefly describe a few of the important things we are doing in the District of Nebraska to make our court and judges more transparent. Second, I will solicit your suggestions for how we (and other federal trial courts) could do a better job of becoming and remaining transparent.  I hope you think this task is as important as I do.

We jumped into the Case Management and Electronic Case Filing (CM/ECF) system early on. We became the first federal trial court in the nation to put all our cases–both criminal and civil–on a computer system that is available to the public 24 hours a day from anywhere in the world.  That means that every document filed in any case is available for review or download for a small fee except those filings that a judge seals or restricts for privacy reasons and the like.

CM/ECF also now serves as a platform for digital audio recording of trials and hearings. Because I don’t use a court reporter, but rely upon digital audio exclusively, anyone, anywhere on a daily basis can access for a very minimal cost any trial or hearing that I conduct save for recordings restricted for security reasons. The digital file is normally available on the same day the trial and hearing is held.

Our judges have each agreed to put his or her sentencing statistics on our external web site. Those statistics are prepared by the Sentencing Commission from data complied by the Commission. We are the first and only court to release this data for each judge and by the name of each judge. Publishing this data in this form is a big deal. It is controversial because publication in this form allows the reader to focus in on specific judges, and there is a legitimate fear that such data could be misused. Nonetheless, every one of our judges, very courageously in my view, thought the public had the right to know what each judge’s sentencing statistics showed. Those statistics are on our external web site under the tab for Judges’ Information.

Speaking of our external web site, the lawyers and the public can find a lot of information on that site. For example, each judge has a daily calendar, generated by CM/ECF, that shows what the judge will be doing in the courtroom for each day of the week. As things change, the calendar is constantly updated by CM/ECF. For example, by clicking on my calendar you will find that I am conducting a supervised release violation hearing and a sentencing proceeding over the noon hour today. By taking the case number from the calendar, you can look up all the filings in the case using CM/ECF to see what is going on in that particular matter. At the end of the day, you can listen to the digital audio recording of the proceeding.

Additionally, under the Judges Information tab, some of our judges disclose their recusal (disqualification) lists. Some even disclose their yearly financial disclosure reports on our external web site.

Perhaps the most innovative and unusual method of achieving true transparency was pioneered by Judge Joe Bataillon, when he was Chief Judge. Our court governance structure (which is publicly available here) calls for meetings of all the judges and those meetings are held quarterly. At those meetings, the great bulk of the court’s internal operating issues are resolved. Judge Bataillon, with the agreement of the other judges, opened up those meetings. Now, the Federal Public Defender, the United States Attorney, a Criminal Justice Act panel attorney, and the attorney who is the Chair of our Federal Practice Committee, attend each meeting and have almost complete access to the information discussed at those meeting. It is worth noting that those meeting can become very heated as the judges grapple with difficult operational issues confronting the court. These lawyers participate in the discussion and, in turn, this serves to maintain a good working relationship between the bench and bar. I believe this innovation is entirely unique.

Finally, I would like to hear from you. Do you know of a district that is doing something significant in the way of transparency that you care to share? Do you have proposals that would advance the goal of transparency? Do you have gripes about the lack of transparency that you would like to highlight? I am very interested in your views. As I said when I began this post, judicial transparency is important. Indeed, it is too important to leave to the judges.

RGK

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