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How They Stack Up: Federal Appeals Courts Vary On Transparency, But All Beat SCOTUS

New Fix the Court report tracks broadcast, workplace, communications policies

The Supreme Court is notorious for its opacity, but there’s little discussion on how the rest of our federal appeals courts fare on basic transparency and accountability measures. That’s why today Fix the Court is releasing its first-ever ranking of appellate courts across various measures of public access.

Spoiler alert: every one of them beat out SCOTUS. Read the report here.

According to our metrics, the top courts were the Ninth Circuit (17 points), the D.C. Circuit (14) and the Third and Fifth Circuits (both with 12). Points were awarded for timely broadcast access, prompt release of calendars and opinions, frequency of public communications and implementation of judicial wellness and workplace conduct policies, with 21 points being the top possible score. 

The fact that the Supreme Court provided no live audio or video access, and had no wellness committee or workplace conduct rules, among other reasons, resulted in a last place finish (six points).

“It should come as no surprise that the Supreme Court is the least transparent federal court by a host of measures,” FTC executive director Gabe Roth said. “As our report demonstrates, other federal appeals courts are making strides across categories of openness and accountability, from wellness to workplace conduct to broadcast. Those lagging behind, including the Supreme Court, should learn from those ahead of the curve.”

Most of the circuits were clustered in the middle, with 10 of the 14 courts we examined scoring between within one standard deviation of the mean (10.6 +/- 2.8 points). Two scored higher (CA9 and CADC), and two scored lower (CA6 and SCOTUS).

“Any number of circuits could move up the rankings by communicating more frequently with the press and public, improving their audio quality or posting their judges’ financial disclosures online. We’ll be tracking these metrics and look forward to seeing how they look a year from now,” Roth added.

More on how the points were calculated:

Broadcast access: We gave two points for live audio access, one point for same-day audio and one point for allowing video in select cases. We also gave one point for allowing live audio in specific cases. Lastly, every circuit earned one point for audio/video quality, as we reviewed each court’s media player and found them adequate — neither crisp nor incomprehensible.

The Ninth and D.C. Circuits stood out for allowing exemplary broadcast access, providing live video and audio respectively. No other circuit received two points for that category. The Fourth and Tenth Circuits and the Supreme Court were the only ones to receive zero points for providing neither live nor same-day audio on a regular basis.

Release of calendars and opinions: we gave two points for posting oral argument calendars months in advance, one point for posting weeks in advance and zero points for posting less than a week in advance. We also gave each court one point for posting opinions online on the day they are decided and one point for providing judicial council opinions and orders online. All circuits received two or three points, with the exception of the Seventh Circuit, which received no points for providing a calendar less than a week in advance, and the Supreme Court, which received an extra point since its opinion releases are regular (i.e., on “opinion days”) and not random, though we’d prefer to know ahead of time which opinions were being released on which days.

Public communication: we counted the number of press releases in Oct. 2019, and circuits received two points for publishing three or more press releases, one point for publishing one or two press releases and zero points for zero releases. The Fourth, Ninth, Tenth and Federal Circuits all had more than three releases, whereas the First and Fifth each published no releases in that timeframe. We also examined circuits’ education programming and judges’ participation in events that appeared to be partisan. Our analysis can be found in the report, though it did not affect point distribution. 

Workplace conduct rules and wellness plans: we gave two points to circuits that acknowledged and incorporated the Judicial Conference’s Mar. 2019 workplace policies and one point for posting the new rules without an explicit acknowledgment. We also gave two points for the creation of a workplace conduct committee. We gave two points for a formal judicial wellness plan or committee and one for an informal plan. In addition, we gave circuits one point for posting any financial disclosures online and one point for posting a list of potential conflicts online. The Ninth Circuit scored the best overall in these categories, with two points for judicial wellness and workplace conduct committees, as well as updated JCUS workplace policies advertised on the website. 

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