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Monday, November 21, 2022

The Court and Politics: An Update

Two points, which seem to fit reasonably well into what I wrote on Saturday about the latest Supreme Court fracas:

1) "If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?"

Of course there have been calls for investigation, by both senators and advocacy groups. Of course that is reasonable and at least "ostensibly" legitimate. Of course senators are always fundraising off of these actions, for themselves and for funds to donate to colleagues and candidates as deposits in a favor bank. And of course the press releases by these groups are never far from the large, brightly colored "DONATE" button on the website. Like sharks, they must keep moving and feeding or they will die. 

2) In today's follow-up story in the Times, there is this passage:

Louis J. Virelli III, a professor at Stetson University College of Law, said in an interview that a law requiring the justices to disclose whom they meet with, especially parties who may have interests in a decision, would be constitutional, and it might restore some of the public’s faith in the institution.

I have no beef with the "parties who may have interests in a decision" point. But I wonder how broad a scope of disclosure Prof. Virelli has in mind when he suggests that the justices "disclose whom they meet with." Does that include all social contacts and friendships? Only official in-chambers meetings--which presumably would create an incentive for an increase in the number of unofficial meetings out of chambers? Given that some of these meetings and social contacts are only, in the words of my earlier post, potentially corrupting, rather than actually corrupt, would a list of disclosures restore faith in the institution? Or would it actually serve to undermine it even if those contacts are proper in law and in intent? One can imagine a justice meeting with a bishop, for instance, for legitimate or at least non-illegitimate reasons. One could then in turn imagine an advocacy group researching that bishop and discovering various anti-abortion speeches, and using that contact to raise money questions about such contacts. Obviously the polarities could be changed depending on the justice, the person the justice meets, and the group capitalizing off of the disclosure. All this relates to the questions I asked on Saturday: "What is the right balance between isolation and non-isolation for judges and justices?" and "Would we be worse off without any insider culture?" 

I am not against doing anything at all. (Regardless of whether this story pans out in full; as I wrote a couple of days ago, even if the Justices acted appropriately, if naively, the story at least suggests pretty unimpeachably that some individuals or groups sought to meet, cultivate, and influence the justices through friendship and other contacts.) But I'll repeat what I offered on Saturday: "Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed?" We might indeed want to establish, in law or by norms, new rules governing justices' contacts. But in doing so, we should ask just how insulated we want the justices to be--and one natural and predictable response to an onerous or "transparent" and thus weaponizable disclosure rule would be for the justices to retreat into isolation rather than have any social or professional contacts at all--and seek rules that make sense in light of that desired end-state. 

And we should still ask why the hell we invite the justices to things like the FedSoc or ACS, the AALS, and individual law schools. I still don't see much of a point and I still think there is a small-c corruption to it that outweighs any actual edification we get from such appearances. But I should apply to that assertion the same caution I urged of others: namely, that we should always ask what the right default level of either contact or isolation is for judges and justices. 


Posted by Paul Horwitz on November 21, 2022 at 11:08 AM in Paul Horwitz | Permalink


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