“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country
Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.
Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?
A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.
The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.
In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.
Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.
Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.
A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.
You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.
Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.
The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.
Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.
By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014
Big Government Bailout Worked
Don’t expect to see a lot of newspapers and Web sites with this headline: “Big Government Bailout Worked.” But it would be entirely accurate.
The actual headlines make the point. “Demand for fuel-efficient cars helps GM to $3.2 billion profit,”declared The Post. “GM Reports Earnings Tripled in First Quarter, as Revenue Jumped 15%,” reported the New York Times.
Far too little attention has been paid to the success of the government’s rescue of the Detroit-based auto companies, and almost no attention has been paid to how completely and utterly wrong bailout opponents were when they insisted it was doomed to failure.
“Having the federal government involved in every aspect of the private sector is very dangerous,” Rep. Dan Burton (R-Ind.) told Fox News in December 2008. “In the long term it could cause us to become a quasi-socialist country.” I don’t see any evidence that we have become a “quasi-socialist country,” just big profits.
Rep. Lamar Smith (R-Tex.) called the bailout “the leading edge of the Obama administration’s war on capitalism,” while other members of Congress derided the president’s auto industry task force. “Of course we know that nobody on the task force has any experience in the auto business, and we heard at the hearing many of them don’t even own cars,” declared Rep. Louie Gohmert (R-Tex.) after a hearing on the bailout in May 2009. “And they’re dictating the auto industry for our future? What’s wrong with this picture?”
What’s wrong, sorry to say, is that you won’t see a news conference where the bailout’s foes candidly acknowledge how mistaken they were.
The lack of accountability is stunning but not surprising. It reflects a deep bias in the way our political debate is carried out. The unexamined assumption of so much political reporting is that attacks on government’s capacity to do anything right make intuitive sense because “everybody knows” that government is basically inefficient and incompetent, especially when compared with the private sector.
Government failure gets a lot of coverage. That’s useful because government should be held accountable for its mistakes. What’s not okay is that we hear very little when government acts competently and even creatively. For if mistakes teach lessons, successes teach lessons, too.
In the case of the car industry, allowing the market to operate without any intervention by government would have wiped out a large part of the business that is based in Midwestern states. This irreversible decision would have damaged the economy, many communities and tens of thousands of families.
And contrary to critics’ predictions, government officials were quite capable of working with the market to restructure the industry. Government didn’t overturn capitalism. It tempered the market at a moment when its “natural” forces were pushing toward catastrophe. Government had the resources to buy the industry time.
What’s heartening is that average voters understand that broad assaults on government provide better guidance for the production of sound bites than for the creation of sensible public policy. That’s why House Republicans are backpedaling like crazy on their plans to privatize Medicare — even as they pretend not to.
Conservatives really believed that voters mistrusted government so much that they’d welcome a chance to scrap Big Government Medicare and have the opportunity to purchase policies in the wondrous health insurance marketplace. Don’t people assume that anything is better than government?
But there were deep potholes on the road to a market utopia. Put aside that the Republican budget wouldn’t provide enough money in the long term for the elderly to afford decent private coverage. The truth is that most consumers don’t have great confidence in the private insurance companies, with which they have rather a lot of experience.
When it comes to guaranteeing their access to health care in old age, most citizens trust government more than they trust the marketplace. This doesn’t mean they think Medicare is without flaws. What they do know is that Medicare does not cut people off in mid-illness and that its coverage is affordable because government subsidizes it.
It’s axiomatic that government isn’t perfect and that we’re better off having a large private sector. It ought to be axiomatic that the private market isn’t perfect, either, and that we need government to step in when the market fails. The success of the auto bailout and the failure of the Republicans’ anti-Medicare campaign both teach the same lesson: The era of anti-government extremism is ending.
By: E. J. Dionne, Opinion Writer, The Washington Post, May 8, 2011
Despite Scandalous Abuses, Banks Are Off the Hook Again
Americans know that banks have mistreated borrowers in many ways in foreclosure cases. Among other things, they habitually filed false court documents. There were investigations. We’ve been waiting for federal and state regulators to crack down.
Prepare for a disappointment. As early as this week, federal bank regulators and the nation’s big banks are expected to close a deal that is supposed to address and correct the scandalous abuses. If these agreements are anything like the draft agreement recently published by the American Banker — and we believe they will be — they will be a wrist slap, at best. At worst, they are an attempt to preclude other efforts to hold banks accountable. They are unlikely to ease the foreclosure crisis.
All homeowners will suffer as a result. Some 6.7 million homes have already been lost in the housing bust, and another 3.3 million will be lost through 2012. The plunge in home equity — $5.6 trillion so far — hits everyone because foreclosures are a drag on all house prices.
The deals grew out of last year’s investigation into robo-signing — when banks were found to have filed false documents in foreclosure cases. The report of the investigation has not been released, but we know that robo-signing was not an isolated problem. Many other abuses are well documented: late fees that are so high that borrowers can’t catch up on late payments; conflicts of interest that lead banks to favor foreclosures over loan modifications.
The draft does not call for tough new rules to end those abuses. Or for ramped-up loan modifications. Or for penalties for past violations. Instead, it requires banks to improve the management of their foreclosure processes, including such reforms as “measures to ensure that staff are trained specifically” for their jobs. The banks will also have to adhere to a few new common-sense rules like halting foreclosures while borrowers seek loan modifications and establishing a phone number at which a person will take questions from delinquent borrowers. Some regulators have reportedly said that fines may be imposed later.
But the gist of the terms is that from now on, banks — without admitting or denying wrongdoing — must abide by existing laws and current contracts. To clear up past violations, they are required to hire independent consultants to check a sample of recent foreclosures for evidence of improper evictions and impermissible fees.
The consultants will be chosen and paid by the banks, which will decide how the reviews are conducted. Regulators will only approve the banks’ self-imposed practices. It is hard to imagine rigorous reviews, but if the consultants turn up problems, the banks are required to reimburse affected borrowers and investors as “appropriate.” It is apparently up to the banks to decide what is appropriate.
It gets worse. Consumer advocates have warned that banks may try to assert that these legal agreements pre-empt actions by the states to correct and punish foreclosure abuses. Banks may also try to argue that any additional rules by the new Consumer Financial Protection Bureau to help borrowers would be excessive regulation.
The least federal regulators could do is to stress that the agreements are not intended to pre-empt the states or undermine the consumer bureau. If they don’t, you can add foreclosure abuses to other bank outrages, like bailout-financed bonuses and taxpayer-subsidized profits.
By: The New Yor Times, Editorial, April 9, 2011
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