Are Supreme Court Justices free from outside influence?

2305 students might want to think this over since you're looking at Supreme Court cases. The federal courts are designed as they are - with appointed judges who serve for life - in order to make them independent, but are they?

They are the only court without an ethics code.

An increasing number of people - including members of Congress - think this is a big problem.

- Click here for the article.

Traditionally, Supreme Court justices were near recluses, churning out rulings as they quietly worked behind stately marble columns. But they have begun to pop up in public venues—giving speeches, promoting books, celebrating marriages and even attending operas—like never before. Their new celebrity is also drawing a flurry of new, and often critical, scrutiny.

Watchdog groups are calling on the nine justices, who are appointed for life barring a moral or ethical cataclysm, to be more open and accountable, particularly about any stock investments they may have in the corporations whose legal disputes often wind up on their docket. But it’s highly unlikely the court will drop its veil of secrecy and embrace any efforts to curb its freedom to act as final judicial arbiter as it sees fit.

One change urged by a group called “Fix the Court” calls on the justices to disclose more information about any possible or actual conflicts of interest that arise from their financial holdings and other outside entanglements.

Fix the Court is hardly alone. The nine justices have been urged to change their ways for decades, particularly amid controversies like 2000 Bush v. Gore presidential contest decision was decided or the recent campaign finance remake in Citizens United.

But calls for curbs have fallen on deaf ears, leaving the court as the country’s only judicial body without an established ethics code. The Supreme Court relies on voluntary compliance. In April, Democratic lawmakers introduced the Supreme Court Ethics Act, which would require the top court to adopt written ethics rules within six months of the law’s enactment.

“There is absolutely no reason why the Supreme Court justices shouldn’t be subject to the same code of conduct as all other federal judges,” said Senator Chris Murphy, Democrat of Connecticut and the bill’s sponsor, when introducing the bill. Since 1973, all other federal judges have been required to adhere to a code of conduct.

The US Supreme Court refuses to hear a challenge to Texas' Open Meetings Act

Politico calls this a win for transparency advocates in the state.

The denial of certiorari leaves intact a ruling from a federal appeals court, which upheld the law against a challenge from local government officials, who claimed it restricted their First Amendment rights.

The Texas Open Meetings Act prohibits officials of certain governing bodies from “knowingly participating in a closed meeting, to organize a closed meeting, or to close a meeting to the public,” according to the Fifth Circuit Court opinion.

In 2005, two Alpine, Texas, city council officials were indicted for violating the Texas Open Meetings Act over emails they exchanged, which the government argued constituted a closed meeting. Though charges were later dropped, some of the officials involved in the email exchange sued, saying the act was a restriction of free speech, overbroad and vague.

The district court and circuit court both upheld the statute, rejecting the plaintiff’s claims.

The three-judge panel of the Fifth Circuit held that not only is the law content-neutral and constitutional, it also serves an important purpose for open government.

“Here, government is not made less transparent because of the messages of private speech about public policy: Transparency is furthered by allowing the public to have access to government decisionmaking. This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message,” opinion from Judge Jerry Smith stated.

Attorney General Greg Abbott, who defended the act, issued a statement praising the Supreme Court’s move to let the lower court ruling stand as a win for open government.

Proposals for making the national government more transparent

The Sunlight Foundation discusses 16 changes they would like to see made. Worth a look.

Catching up with Texas Tribune's Bidness as Usual Project

Since I last linked to the series, several more articles have been added:

- Texas Ethics Reform: A Long, Tortured History. The story highlights the impact the Sharpstown Scandal had on the legislature, as well as scandals that preceded and followed it.


- Some Public Business Remains in the Shadows. It is very difficult to get the information necessary to determine if a conflict of interest exists regarding a member's vote on a bill because relevant information is difficult to obtain.

- Most State Lawmakers Won't Disclose Tax Returns. Tax returns are the best way to see where legislators earn their money - and how much of it - but most think this is too much transparency.

- Legislators Can Carry Bills That Benefit Them. There are no rules in place that limit the ability of a legislator to guide legislation through the chamber if the bill personally benefits them.

More to come, its a great series.

I see toll roads in your future

Lot's of them apparently.

The Texas Tribune reports that transporation policy in Texas is continuing to shift from publicly built and financed roads to privately built roads. Is this a good idea?

In the view of many critics, tolling in Texas has shifted from an if-we-absolutely-must option to the default approach for major road projects.

“The day will surely come when, if you want to get from point A to point B, you’re not going to have a choice but to get on a toll road,” state Sen. John Carona, R-Dallas, warned at a panel discussion at The Texas Tribune Festival in September on transportation financing. “Well then, suddenly, a toll is just another tax. Let’s not kid one another.”

Fueling the current tolling boom is the transportation financing system in Texas, which falls far short of the state’s needs. Federal and state gas taxes are the primary revenue source for road construction and maintenance. Despite rising construction costs and the improving fuel efficiency of cars, Texans pay the same 38.4 cents in federal and state taxes per gallon of gas as they did nearly 20 years ago. In recent years, the Texas Department of Transportation has borrowed billions of dollars to finance transportation projects.

A 2009 report by an advisory committee said Texas should invest about $4 billion more per year on its current road system just to prevent congestion from worsening. As proposals to raise more transportation revenue have failed to draw sufficient political support, charging a toll is now seen as one of the few viable paths to developing major routes.
- Click here for an interactive map of toll roads in the state.
- Click here to learn more about the Texas transportation financing system.
- Click here for a 2009 report estimating Texas' transportation needs.

Torture and the Marketplace of Ideas

While discussing the marketplace ideas in my 2301 classes, and the related question regarding whether certain topics should be off the table, a debate was ignited over releasing the memos covering just how torture policy was carried out in recent years.

Some wonder whether it is appropriate to even discuss this at all, which suggests that some believe that torture -- whether it should be done, how it should be done and how effective it might be -- should not be part of the marketplace of ideas.

Here's what I think is a neat summary of the dilemma:

Had the torture debate been fully engaged when the Bush team was making the decisions it made in 2001-02, I think it is plausible that the political process would have produced a consensus that would have been far more sympathetic to the Bush position than the present day consensus appears to be. At a minimum, it would have made it impossible for Congressional Democrats to claim, as they implausibly do now, that despite all the briefings they received they just can't remember coming down one way or the other on the issue.

The Bush team erred by not grounding the policy more firmly in the bedrock of the political process that the Framers identified for contentious issues -- namely, in involving Congress and the public -- and, instead, by relying on the penumbra of the Commander-in-chief clause. We non-lawyers have learned one thing from the abortion debate: The penumbra is a lousy place to park contentious issues.

I predict that, for better or worse, the political framework will be the decisive one going forward. At this point, debates about the legal or ethical arguments are probably impossibly entangled with political questions. And, should the larger worm turn -- should the terrorists succeed in launching another attack on the United States -- then I would not be surprised to see the political debate shift dramatically again.

At the center of this debate, it seems to me, is the question whether American can sensible and effectively discuss certain issues. Another question of course is whether elected leaders want to public to discuss certain things. How much of what government does ought to be secret?

Transparency in the White House

The Obama Administration has promised to be transparent, which means that they will make their decisions public. They have promised, for example to post all non-emergency legislation online before Obama signs it in order to gather comments from the public.

Apparently they didn't do this for the Ledbetter bill signed today and this guy is upset about it.

As a point of comparison, here's a list of some secret memos from the Bush Administration that have been made public recently. Secrecy was then considered to be an essential way to act effectively. Perhaps, but it invites abuse.

Which way should the president err?

Transparency at the FCC

Here's another story about increased transparency in government, this time at the Federal Communications Commission. The story is in the National Journal, which requires a subscription, but you may be able to sneak in.

It's a simple enough proposal, the FCC will now issue press releases stating the agenda of their meetings, three weeks prior to the meeting rather than one week. Not a big deal on the surface but the smaller the amount of time before the meeting, the greater control the FCC had in its meetings. The change was not entirely voluntary, but is in fact an example of checks and balances:

The announcement, and the press conference itself, were the direct result of pressure on Martin from the House Energy and Commerce Committee, which is conducting a months-long review of the FCC and its regulatory practices. Four days later, on April 28, an internal Energy and Commerce staff memo tightened the squeeze when it recommended holding oversight hearings in June, asserting, "The FCC process appears broken and most of the blame appears to rest with Chairman [Kevin] Martin."

In an effort to tamp down such criticism, the chairman has instituted a series of unilateral moves designed to make the FCC more transparent. "I've tried to be responsive to individual concerns that people have raised about the public not being aware enough about some of the issues that were in front of us,"

Congress has been critical of FCC actions as have members of the FCC itself. Much of the criticism is based on process:

Jonathan Adelstein, one of two Democrats on the five-member commission, delivered unusually candid remarks at a forum on Maryland's Eastern Shore last weekend, saying that the Federal Trade Commission is the model for how the FCC should be run. "They have a wonderful collegial atmosphere; they work together on things; they have an open, transparent process," he said. Noting that FCC regulators sometimes have to "beg and plead" to obtain data within the agency, he said, "There should be no fear about sharing information or having an open dialogue."

"The processes that the commission follows are exactly the same as when I actually worked in, physically in, the same office that Commissioner Adelstein is in now," Martin told NJ, referring to his days as an adviser to another regulator.

Critics offered a laundry list of additional steps the chairman could take to make the commission more transparent: requiring more-detailed disclosures of meetings involving FCC officials and outside parties; enforcing deadlines for merger reviews and responses to congressional inquiries; and allowing the public to comment on reports before they are final. Martin's efforts dovetail with the timing of the investigation.

Here's an example of what the beef was about:

Until recently, Martin conducted 11th-hour horse-trading on the eve of public meetings that led to delays of almost 12 hours. Some meetings scheduled for morning commenced at night, and reporters would hold betting pools on when each session would begin.

Uncertainty provides opportunities for politics and manipulation. The commission is continually under scrutiny for having cozy relationships with the interests they regulate. The move may, or may not, eradicate that.

Transparency and the Harris County DA

The Chron editorialized today against the DA's office creating a public information office to handle relations with the media.

They argue that the last two DA's warts and all, allowed an unprecedented level of direct access by the media to assistant DA's in the office. A public information office might change that dynamic and in fact limit media access:

The taxpayers should be concerned that they are being asked to pay the cost of erecting a sound wall that is bound to obstruct their ability to find out what their government officials are doing.

Magidson argued to commissioners that the office's policy of allowing investigators and assistant district attorneys to talk directly to the press has become difficult to supervise. He plans to install a public information attorney and a public information officer to serve as the "face and voice" of the office in his absence. A secretary would also be employed. Magidson described the positions as liaisons between news reporters and prosecutors.

In theory, such an arrangement could be helpful. It makes it easy for journalists to know whom to call for information. And these officers are good at putting together department newsletters and archives, which Magidson said would be part of their charge.

But what often happens is that reporters are routed to the press officer, who cannot answer their questions because they have no direct knowledge of the matter at hand. A communications professional usually is adept at finding out the information, but if the answers generate additional questions, the "flaks," as they are known, have to go back for further information. It's inefficient, time-consuming and frustrating for reporters trying to learn important and sensitive government information.

Magidson insists that this procedural change will not restrict the flow of information, but how could it not? The flow of information will be restricted to a single channel. His general counsel, Scott Durfee, who is acting as the office's spokesman until the press division is created, said access to assistant district attorneys will be limited. Durfee himself has been among the most accessible employees of the district attorney's office. It will be a loss to the public's right to know if Durfee, a bank of institutional memory, is muzzled by the new media policy.

The past system of course was ad-hoc and subject to the whims of the DA. No reason to believe that similar levels off access would be granted by future DA's. Still, despite repeated calls to change this and that, it's worth pondering whether the status quo ain't that bad, or at least no worse than any proposed change.

Cameras in the Supreme Court?

The Senate Judiciary Committee held hearings yesterday (2/14/07) on "Judicial Security and Independence."

In the question and answer period, Justice Anthony Kennedy was asked by committee ranking member Arlen Specter about his position on cameras in the courtroom (he has introduced a bill to that effect).

Kennedy argued against them. Which raises an interesting question about the impact of the media on institutional deliberation. Does secrecy (or at least a degree of insulation) facilitate a higher level of deliberation than we would otherwise expect? Or do the demands of tranparency--a key component of democracy--require that all governmental deliberations that do not compromise security interests be completely public, and even broadcast.