Interview: Gabe Roth // Thursday, March 22, 2018

Gabe Roth is the Executive Director of Fix the Court, a nonpartisan organization advocating for greater transparency in the federal judiciary. You can learn more about Fix the Court through its website and Twitter page

What did you study at the Medill School of Journalism, and what was the most useful thing you learned?

I studied broadcast journalism. When I was still in college, I worked for both the TV station and the newspaper at WashU. I think I had more interesting experiences at the TV station, and that’s why I chose broadcast.

I actually took a class while at Medill on the Supreme Court. The class was focused on trying to figure out how to make issues in federal court cases, primarily the Supreme Court, interesting to a broader audience. That entailed us going back and interviewing attorneys and parties in those cases. And it was hard to make interesting anecdotes from sometimes dry issues. But it taught me really great lessons: first of all about how the courts work, and second, despite the fact that most of the cases may seem dry, that all of them impact real people.

How did you go from broadcast journalism to the Coalition for Court Transparency? 

My first job was as a television news producer at a local NBC affiliate in Jacksonville, Florida. It was a challenging job because there was very little depth with what I was able to do, and I just kept having to move onto the next story. That wasn’t something that I loved.

Then I moved to DC and started working in political consulting. I had 3 or 4 jobs working for grassroots organizations and bipartisan coalitions on issues including the environment, immigration, and habeas relief for Guantanamo prisoners. But I was always interested in the courts and justice, and the Coalition for Court Transparency was something I started when I was doing political consulting. I noticed that there was this issue where you have a case at the Supreme Court, and all the plaintiffs aren’t able to experience it firsthand. They live in California or Maine or Wyoming. It would be a lot easier if they could just turn on C-Span 4 and watch what was going on in oral argument. Over time, it grew into this larger issue of how the Supreme Court is not just opaque in its broadcast policies, but in all sorts of ethics, recusals, and stock ownership practices as well.

You left off on a great place for me to jump into Fix the Court’s policies. I’m wondering why you propose 18 years for the number of years that Justices should serve. Why not 15 or 20?

The easiest answer to that is “math.” If you have nine justices, then you want to put a new one on the court every two years. Nine times two is eighteen, so it takes 18 years to cycle through that cohort of Justices. If there were eight Justices, then sixteen years would probably make the most sense. Recently, the Justices have served have served an average of 26 years. Historically, it was closer to fifteen or seventeen. I think eighteen’s a good number –long enough that they can have an impact on the law, but not so long to make the system seem like feudalism or create concerns about cognitive decline.

The Constitution says that judges should serve in “good behavior.” If a Justice has served eighteen years and retains his or her cognitive faculties after that time, wouldn’t it be wrong to cut off their term?

I interpret the good behavior clause as being about the office of federal judge, not necessarily the office of Supreme Court justice. So they’re more than welcome to, as David Souter and Sandra Day O’Connor have, ride circuit.  Having those individuals continuing to impact the law and continuing to mentor younger generations, either by sitting on federal courts of appeals or by writing and speaking, is really valuable. We should encourage that sort of behavior. You’re going to be on the court for a certain amount time, but afterwards, if you’re up for it, you have a responsibility to continue that pedagogy.

I read your op-ed for The Hill on this topic, which was really interesting. For people who haven’t read it, could you explain what the 9th Circuit is doing to identify and mitigate cognitive decline in judges?

Sure. They established a committee almost twenty years ago called a Judicial Wellness Committee. It encourages individuals on the court, both judges and people elsewhere throughout the circuit, to really take a hard look at health. If you’re a clerk, and you’re worried that your judge might be slipping — that he or she is forgetting their keys on a Tuesday and forgetting what the Fourth Amendment says on a Thursday, then there’s a hotline you can call and say, “look, I have some questions.” 

They also host neurological seminars, and they have a buddy system as well. Judges are supposed to check in with one another and ask, “How are you doing? How’s your physical health, your mental health?” There are other resources that are brought to bear in the Ninth Circuit — a lot of online literature that the are judges are encouraged to study on what the signs of aging may be. If they have a concern, they’re supposed to reach out to the chief judge or one of the administrators to see what can be done about it. And that’s a program that I think every circuit should have.  I’ve been going from circuit to circuit, asking them, “Is this something you’re considering?” Most if not all of them are implementing or considering this type of plan, which I think is important just because we know that judges are serving longer than ever.

Most of these reforms are focused on federal judges. But later in the article, you mentioned that you sent a FOIA request to the Department of Justice about military judges. Have you received a response yet?

I have not. [laughs]

How long do FOIA requests usually take?

Oh god. I saw something on Twitter yesterday, where this guy got a response to a FOIA he wrote in 2013. Just now.

So, I actually filed a FOIA request to the US Marshal service about when the Marshals cover the Justices’ travel. If you’re a Justice of the Supreme Court, you’re allowed to have the US Marshal service protect you as you travel domestically (outside of Washington DC). And it’s an opt-in program, so the Justices don’t always travel with Marshals. Which, I don’t know — I understand it from some perspective. You don’t necessarily want a cop tailing you when you’re visiting your grandkids on the one hand. On the other hand, we know there are present threats to the Justices. So I think, just the idea that the Justices aren’t taking advantage of that protection is a conversation senators from the Judiciary Committee certainly want to have. We, as Americans, also want to be sure that our top officials in all branches of government officials are as safe as possible.

I filed that FOIA request in May of 2016, and I just got a response a week and a half ago. These things take a while. By statute they’re supposed to be disposed of pretty quickly, but that’s unfortunately not always the case. 

Once you receive the documents, how do you find the relevant information? It seems like finding a needle in a haystack when you’re sifting through hundreds, if not thousands of pages.

You sort of get a rhythm. A lot of the pages are either all blacked out, or they’re just useless news clippings that appeared in somebody’s email at some point. It’s time-consuming, and you have to turn it over and turn it over again. The Marshals gave me 380 pages. That wasn’t so hard. It just took most of a Saturday to go through what was there. But again, for my purposes, I’m not trying to play gotcha in any sense. There‘s just certain parts of the public record and the public discourse that I think should be amplified. 

One of your big “fixes” is that the Justices should recuse themselves from conflict-inducing stock holdings. How can we determine which stocks meet that definition?

That’s actually a question that Congress has grappled with for years. For  a while, there was a minimum amount. If you owned a couple of shares in AT&T, you could still hear a case. And then it it went to this point where if you have any shares of AT&T, you are by statute not allowed to hear the case. Now, Supreme Court Justices have very little recourse or reprimand if they do hear that case. It’s almost like an honor system. Because if you’re a Justice, the only thing that can happen to you is impeachment. If you’re a lower court judge and you’re accused of misconduct, you could be censured. You can have cases removed. You can be required to undergo sensitivity training. There’s a whole process by which you could slowly be pushed out and slowly get articles of impeachment by a judicial counsel process. But if you’re a Justice, it’s like, “You have to trust us.”

And they’re required by law every year to write out in an annual financial disclosure report how much money they have in their individual stock holdings or their various financial holdings. So right now, if you have a dollar of stock in AT&T, you cannot hear an AT&T case. This raises the larger question of why the Justices are owning individual stocks. AT&T is a very large company, and there are cases about AT&T that reach the Court every year. The fact that three of the Justices, and I’m talking about Breyer, Alito, and Roberts, own these individual stocks while the rest of the court is invested in mutual funds or retirement accounts — it doesn’t really make sense.

And further, if there’s a case like Verizon v. US, a Verizon win may be good for AT&T shareholders as well because it’s the same industry. So when a Justice owns AT&T stock and then votes for Verizon in Verizon v. US, it’s perfectly fine under the statute, but it smells a little funny. Overall, I think it’s a question of why is there any individual stock investment at all when there’s so many other blended instruments in the financial system that are less likely to induce recusal down the line.

Not only are the Justices held to a lesser standard regarding recusals, but they don’t have to be as detailed in their financial disclosure forms as members of Congress, right?

No, they’re not as detailed as members of Congress or certain executive branch officials. In Congress, you have the Office of Government Ethics and a Senate Ethics Office. You don’t really have that same level of oversight in the judiciary. I’m told that there’s an attorney who works for the administrative office who sort of acts like an inspector general and checks different ethical forms that judges and justices fill out. That’s one guy among thousands of court employees, and there’s nothing statutorily that ensures that person is doing what they say they’re doing. So that’s an issue — that Justices make mistakes on their forms all the time. For example, Justice Breyer has CPAs fill out his form, whereas Sotomayor fills out her own form and often misses things. There’s just no standard practice across the court that would give me a better sense that they’re really above-board ethically on their financial holdings.

For a lot of Fix the Court’s solutions, such as more transparency concerning the Justices’ US Marshal protection, financial disclosure forms, public appearance dates, etc., the solution is for Congress to pass a law.  To what extent does Congress have that power?

The issue of separation of power comes up pretty often with Fix the Court. We have three main points.

1) All the fixes that Fix the Court has proposed could be accomplished by the Justices themselves. If Chief Justice Roberts wants cameras in the court and to retire after 18 years, sell his stocks, and follow a code of conduct, he could make himself and his colleagues do that. There’s no question.

2) Throughout the history of the United States, Congress was very heavily involved in legislating rules for the judges and for the justices. I think the tide really turned in 1937, when Franklin Roosevelt tried his court-packing plan. Since then, Congress has been pretty weary of imposing new rules on the Supreme Court. But that doesn’t mean that it’s unconstitutional for them to do so. Congress has passed laws requiring the justices to do certain things without any constitutional issues.

The third thing I’ll say is that there are proposals out there, in this current Congress, that would impact the Supreme Court. Louise Slaughter, who sadly just passed away, co-wrote and co-sponsored a bill that required the Justices to follow a similar code of conduct to what the rest of the judiciary follows. There’s also the Cameras in the Courtroom Act and Sunshine in the Courtroom Act, trying to get broadcast access to federal appellate courts and the Supreme Courts. None of these bills are probably going to go anywhere in this Congress. Unfortunately, my fixes are stuck in the same rut that a lot of other issues are.

Again, there are ways to pass laws that would impact the court in a positive way in terms of transparency and accountability, but I don’t think would overstep any bounds inherent in the separation of powers doctrine.

You said that Chief Justice Roberts could implement most or all of your fixes on his own. If you could sit down with him for ten minutes, one-on-one, what would you say?

I think the first thing would be for him, Alito, and Breyer to sell their individual stocks. There’s no reason that they own Time Warner and Cisco and IBM. There’s just no reason for that.

The second thing I would say is — in the past, the Justices have signed ethics pledges. Most recently, there was one written about 25 years ago, when it just so happened that a lot of the Justices had spouses or children who worked in the law. And that is also the case right now. I definitely think he should resign that pledge.

The third thing would be live audio. We know that the Supreme Court has the capability to stream live audio from its courtroom — it did a live audio stream for Justice Scalia’s bar memorial in November 2016. And Chief Justice Roberts‘s good friend Merrick Garland just started allowing live audio in the DC Circuit’s arguments. Those are really the three things that I would say.

Does the Court offer any concrete reasons for not releasing live audio?

The Court hasn’t done same-day audio since Obergefell in April 2015. The fact that they’re not even doing that is strange. In terms of why they don’t want to do live audio, it’s the old rigmarole. The Justices believe that live audio would cause them, their colleagues, or the attorneys presenting oral argument to grandstand — to act in a way that would be detrimental to the flow of the arguments. All of which is unfounded.

You’ve been to arguments, so you know there’s just not enough time for grandstanding. The Supreme Court bar is very professional. And they would get smacked down in two seconds anyway. That’s something that Maureen O’Connor, who’s Chief Justice on the Supreme Court of Ohio, always used to say. Like, “Yeah, we’ve got cameras. Some guy grandstanded, I put him in his place, and it never happened again.” That’s generally my attitude as well. If there’s some dingus who would try it, they’d get smacked down, and it would really hurt their cause. I don’t believe that any of the arguments against video or live audio are valid.

How often do you attend oral arguments?

I try to go about two times a year. Sometimes I’ll be down there for opinion announcements as well. But I’m not a member of the Supreme Court bar, so I have to stand in the peasant line with everyone else and get there at 5am. It’s worth it, but it’s definitely a commitment.

What is your proudest accomplishment at Fix the Court?

Getting live audio for Garza v. Hargan was pretty awesome. I was not expecting that. I was really hoping to get live audio for a different case, about FOIA. And then this AP reporter, Jessica Gresko, was like, “Hey — why don’t you just request the audio for Garza v. Hargan?” That was about an undocumented girl wanting an abortion who ended up in HHS custody. I just asked for live audio on that, and within a few hours got back the green light from the aforementioned Merrick Garland. So that was my proudest accomplishment.

Overall, I think, people who cover the court are thinking more about these issues now than ever before. For too long, there’s been this kid-gloves attitude towards the justices in terms of who they are, who they associate with, where they travel, and why they’re not following certain rules. But they’re public figures just as anyone else in the other branches are. If some of their activities or investments or associations raise questions, it’s important to ask those questions. That’s something that I’ve been doing and, I think more and more, the press who cover the Justices are doing. Hopefully I’ll be able to continue that for a long time.

There’s a quote — I’m not sure from where — that says, “‘Justice’ is the closest title we have to nobility in America.” It’s really cool that you’re challenging that, and recognizing that the Justices are human beings with flaws that we need to consider and address.

That’s something too that I want to add. The Supreme Court is definitely my favorite branch, and I have massive respect for the Justices and what they do. Fix the Court is this ongoing question of: “You’re doing so much better than the other two branches. Why won’t you let the American people know about it?” Or, “you’re doing so much better than the other branches. Why are you having these stupid, unforced errors and missed recusals and silly stock ownerships and shady travel?” They’re so close. They really are. I’m not asking them to grow a third arm and relocate to Cuba. It’s just that these little unforced errors and areas of opacity make no sense in this day and age, when any amount of transparency that they add to this institution would show it in such a positive light. Especially compared to the other two branches.

Are there any books you’d recommend about the Court’s lack of transparency?

I would say Chapter Nine of Erwin Chemerinsky’s “The Case Against the Supreme Court” is really good. There’s also a book called “Electing Justice” by Richard Davis. It talks about the Supreme Court confirmation hearings and the farce they have become, which I think is interesting. I also liked “Closed Chambers” by Edward Lazarus, which is about the inside baseball of the Court.

Which law blogs do you read most frequently?

Every day, I start out with SCOTUSblog. I also read How Appealing. Those are really my two go-tos. The other blogs I read are generally things that I get through my Twitter feed. If there’s a Volokh Conspiracy link, I’ll read that. If there’s a Rick Hasen election blog link, I’ll read that. LawFare and Take Care have also been really good, what with the new administration and all the constitutional questions raised there.

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