The League of Women Voters of the Piedmont Triad is taking part in a consensus meeting on April 8, 2025 for our members. LWVNC asks that we submit our consensual opinions about selected ethical issues for the Federal Judiciary.
League of Women Voters of the Piedmont Triad
Federal Judiciary Study Consensus Meeting
LWVUS advocacy is based on League positions. Studies, which are the basis of positions, make our actions possible. At the LWVUS 2024 Convention, delegates voted to proceed with a study on the federal judiciary. The study should be completed in time for a position to be announced at the LWVUS 2025 Council in June 2025. Leagues will be meeting from February 8-April 14, 2025 to discuss the Federal Judiciary Study information and respond to twelve questions.
The Study includes clarifying judicial accountability, transparency, independence, and ethics. The scope addresses the US Supreme Court (SCOTUS) as well as the other Article III federal courts (94 federal district courts and 13 circuit courts of appeals). Our position should be principle-based in order to ensure that it lasts for many years to come and allows us to address a wide variety of issues that may arise in future years.
Current LWV Positions:
- Impact on Issues, A Guide to Public Policy Positions of the League of Women Voters
(available for purchase in paperback)
Are the following qualities essential to an effective Federal Judiciary?
1. Transparency
The US Supreme Court issues rulings in two ways: written opinions and orders. There are usually only about 70 written opinions a session. The rest are unsigned and unexplained, and have been called the shadow docket because they have been used recently to block or unblock many major actions (immigration, vaccinations, environmental rights, capital punishment, reproductive rights, affirmative action, racial gerrymandering, and voting rights).
SCOTUS can use this shadow docket to grant “emergency relief”: freezing a policy or ruling during an appeal, or it can deny “cert”, refusing to hear an appeal. The Court receives about 7,000 petitions for emergency appeals each year, and recently granted about 25. The number of emergency relief hearings has increased dramatically, and has meant that cases are handled on an expedited basis with limited briefing, no oral argument, and resolved in unsigned orders with little or no explanation.
The important transparency issues the shadow docket raises are that there is no formal record of proceedings or findings of fact in a trial court, no legal ruling on the merits from a trial or appellate court, and the votes of individual justices are not reported.
2. Independence
Judge Shopping (also called forum shopping or venue shopping) is the practice of strategically choosing where a legal case is filed based on which court or judge is more likely to provide a favorable ruling.
In March 2024, the Judicial Conference of the United States adopted new rules that would limit the use of judge shopping for cases looking to block state or federal laws. The new rules require that these cases be assigned a judge randomly throughout a federal district and not heard just by judges in a specific courthouse or division. This rule is not yet being applied consistently.
Should our courts be free from the influence of the other branches of government, and free from shifting popular and political opinion?
3. Ethics
The Judicial Conference of the United States has composed and updated a Code of Conduct directed to all federal judges except SCOTUS Justices.
There is a complaint and disciplinary framework for federal judges, but not SCOTUS Justices.
SCOTUS Justices are the only members of the federal judiciary not covered by a binding code of conduct, and the voluntary code they recently wrote has no enforcement mechanism.
4. Should court hearings, documents filed in the court, and rulings for all federal cases be open and available to the public?
Court proceedings and rulings that are open and available help to preserve judicial legitimacy and provide litigants with up-to-date guidance on what the law is.
5. Should there be an effective enforcement mechanism for the Federal Judiciary code of ethics at all levels, including the process to require a judge or justice to recuse himself or herself? Should the decision and rationale to recuse or not recuse be publicly disclosed in writing?
Judicial integrity is exemplified by following enforceable codes of conduct with effective enforcement mechanisms. Integrity includes avoidance of conflicts of interest or the appearance of conflicts; use of position for personal gain, corruption, or favoritism; proper use of recusal; and transparent financial disclosure.
28 U.S.C. § 455, includes the following restrictions: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
But for SCOTUS. each Justice makes their own decisions on when and whether to recuse. When they do, it is typically without explanation, i.e., without transparency for or against recusal.
6. Should Federal judges and Justices be subject to the same rigorous financial disclosure requirements, enforcement, and penalties for all financial benefits (income, gifts, paid speaking engagements, and book deals)?
The Ethics in Government Act of 1978 (EIGA) established financial disclosure reporting requirements.
Additionally, under the Stop Trading on Congressional Knowledge (STOCK) Act of 2012, certain filers must also submit periodic transaction reports (PTRs).
Financial disclosure reports are submitted annually to the Judicial Conference of the United States.
The reports must be made available to the public and The Courthouse Ethics and Transparency Act of 2022, requires online publication of financial disclosure reports.
In the new Supreme Court’s Code of Conduct, the Court’s compliance with current Judicial Conference regulations is indicated. But the new Code of Conduct does not itself include any enforcement mechanisms, meaning there is no process to address alleged violations of the Code.
7. Stability of law (precedent or stare decisis, “to stand by things decided” in similar cases)
Stability of law promotes evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to actual and perceived integrity of the judicial process.
Should there be objective decision-making, free from bias or prejudice, where precedence is followed, and everyone has equal access to the justice system?
8. Public perception
Improper use of the shadow docket, the power to grant emergency relief, tends to delegitimize the Court.
Should Federal Courts respect and operate within the constitutional framework balancing authority with executive and legislative branches?
Should the Supreme Court take an active role in ensuring that the other branches of government abide by the Constitution?
If the Supreme Court cannot enforce its decisions, what happens? Occasionally, the executive branch has intervened to enforce controversial Supreme Court decisions.
A crisis in legitimacy results from politicization of the Court and the nomination process, ethics scandals, lack of transparency in Court rulings (from increased reliance on the shadow docket), and failure of the Court to acknowledge and respond to its growing crisis of legitimacy.