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On March 31st, the LWV of San Diego had its consensus meeting regarding the Federal Judiciary Study. There was good discussion as we went through the 12 statements. Of particular interest to attendees was the Supreme Court’s use of the “shadow docket” of emergency cases which do not receive the benefit of the discussion and decisions of the lower courts and of oral argument before the Supreme Court. There is usually minimal expression of reasoning in the opinions. The shadow docket has been used increasingly.

Thanks again to Stephanie Sontag for sharing her expertise with us, Jane Andrews for moderating, Mary Hanson for recording, and Jeanell Trotter for timing.

These were the responses from LWVSD that were sent to LWVUS. LWVUS will gather the information from all Leagues and let us know the outcome sometime after the Council meeting in June.

LWVSD Responses to the LWVUS Federal Judiciary Study
Based on Consensus Meeting with 18 members via Zoom on March 31, 2025
Recorder Mary Hanson

1.Transparency is essential to an effective federal judiciary.
Moderate consensus in support
For statement #1, see comments under #6 below regarding the shadow docket as well as those under #8 concerning recusal. Some participants would like to see ""essential"" changed to ""important.""

2. Accountability is essential to an effective federal judiciary.
no consensus
Participants thought #2 was too vague, but agreed that accountability to the rule of law is the primary standard to be considered.

3.Independence is essential to an effective federal judiciary.
Moderate consensus in support
Participants agreed that objectivity was the most important criterion when considering the issue of independence.

4. Ethics is essential to an effective federal judiciary.
Moderate consensus in support
Participants thought that this statement was redundant because other statements cover the topic of ethics. A couple of people prefer ""ethical behavior"" to ""ethics.""

5. There should be binding universal standards of conduct for judges and justices at all levels of the federal courts.
Strong consensus in support

6. Court hearings, documents filed in court & rulings for all federal cases should be open & available to the public.
Strong consensus in support
For # 6, there was concern about the increasing use of the shadow docket and the inherent lack of transparency that implies.

7. There should be an effective enforcement mechanism for the federal judiciary code of ethics at all levels.
Strong consensus in support
Participants were reminded that there are clearly established procedures in place to enforce the code of conduct for the lower courts, but no such process at the Supreme Court level. They agreed that ""no one should be above the law.""

8. An enforcement mechanism should include a process to require a judge or justice to recuse him or herself when a reasonable litigant would believe that judge or justice has a bias against any party or an issue raised in the case.
Strong consensus in support
Attendees expressed awareness that if a judge at the lower court level needs to recuse him or herself that another judge can fill in, but that current practice doesn't allow this at the Supreme Court level.
They agreed that it's just as important for recusal to occur when the bias is in favor of one of the parties in a case, not just bias against. They would prefer that the statement be reworded to state ""a bias for or against any party or issue raised in the case."" It can be tricky for a lawyer to move for recusal, for fear of antagonizing the judge.

9. A judge or justice’s decision and rationale to recuse or not recuse should be publicly disclosed in writing.
Strong consensus against
Participants disagreed with the statement in #9 because the very act of a judge stating the reason for his or her recusal could influence the outcome of a case. They agreed that it is more important that the recusal take place when this is the appropriate action than that the reason be stated.

10. Federal judges and justices should be subject to rigorous financial disclosure requirements, enforcement, and penalties for all financial benefits, including but not limited to income, gifts, paid speaking engagements & book deals.
Strong consensus in support
Participants learned that it is actually quite easy to access a judge or justice's financial disclosure form, which all agreed is a good thing. They also learned that rules on gift limits depend on the jurisdiction. Ultimately there was strong consensus on disclosure, but no agreement on how to enforce failures to disclose at the Supreme Court.

11. Stability of law (stare decisis) is a value that contributes to a strong democracy.
Strong consensus in support
Participants agreed strongly, but understand that changing circumstances or new information based on science and data could justify overturning precedent. In other words, stare decisis doesn't mean that the law can never be changed, but that overruling precedent should be based on specific criteria, not on the personal political or religious beliefs of a judge or justice. There generally needs to be consistency and stability in how the law is interpreted.

12. Public perception of the supreme court’s legitimacy contributes to a strong democracy.
No consensus
For this last statement there was little agreement on how to maintain legitimacy or even what that means except that it's an issue of trust. Changes such as term limits or expanding the number of justices were discussed, but there was no general agreement on these issues.

General comments:
Attendees supported the effort to make public the thinking behind shadow docket decisions and also the increased use of emergency decisions. The role of the “court of public opinion” is important.
One attendee expressed concern about the current administration’s attempts to avoid judicial review by claiming greater executive power. This is very concerning, as exemplified in the use of the Alien Enemies Act to deport without due process or judicial review.