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Narrow Mandate of SCOTUS Reform Commission Offers Congress an Opening

FTC urges lawmakers who’ve put forth judicial transparency proposals to revive and advance them

President Biden’s Supreme Court Reform Commission is not expected to offer recommendations on SCOTUS structural reform, and it’s seemingly not engaging on the lack of transparency in the federal courts. Because of this, Fix the Court sees an opportunity for Congress to take charge and compel the third branch to fall in line with the other two on measures of openness and accountability.

“The Supreme Court Reform Commission might be a dud, or it might justify Fix the Court’s push for prospective 18-year term limits. Who knows?” FTC’s Gabe Roth said. “What I do know is that its narrow mandate offers Congress an opening to enact measures that might not upend the entire structure of the Supreme Court like some want but would ensure the judiciary follows modern expectations in transparency and accountability, whether via basic conflict-of-interest, travel and gift regulations or stronger anti-harassment rules.”

As has been reported, the Commission will comprise five working groups, each tasked with studying a topic — like term limits, adding justices or jurisdiction-stripping — and “putting together materials” on it, no recommendations requested. Though several members of Congress have said they’ll take a wait-and-see approach to the Commission’s work, FTC is urging those who’ve already put forward court reform proposals to repeat and advance their efforts this year.

Last year, leading members of the House Judiciary Committee introduced a bill to require livestreaming for appellate court arguments (including in the Supreme Court), create a Supreme Court Code of Conduct, post judges’ and justices’ annual financial disclosures online and explain their recusal decisions. A standalone Supreme Court Ethics Act was introduced in 2019, as was a bill to compel judges and justices to post the dollar amounts of their transportation, lodging and food reimbursements within 15 days, akin to what members of the House do. (It’s a 30-day report in the Senate.) A Republican-led bill to add the number of district court judges requested by the Judicial Conference was introduced, mirroring a similar proposal from 2018.

House Appropriations Democrats drafted report language (p. 47) last year that would have required the judiciary to offer more frequent and thorough updates to lawmakers on their efforts to root out harassment among their ranks. And, for the first time, a bipartisan bill that would make PACER free once and for all passed the House by voice vote on Dec. 8, 2020.

So far this year, only the periodic cameras-in-courts bills have been introduced, along with a Supreme Court Transparency Act that, although a good start, curiously leaves lower court judges out of the equation. The Sen. Kennedy-drafted text would only require periodic securities transaction reports and online financial disclosure from Supreme Court justices.

“There’s much more to do,” Roth added. “Since the judiciary won’t reform itself, I look forward to working with Congress to make these reforms happen.”

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