It is extremely rare for a Chief Justice of the United States Supreme Court to fuss at the President. Yet, that is what Chief Justice Roberts has done. Pres. Trump complained that an “Obama judge” ruled against him. The next day, Chief Justice Roberts said we do not have Obama judges, Bush judges, or Clinton judges. Instead, we have an independent judiciary for which we should all be thankful.  The Chief Justice was trying to tell the President that these frequent attacks on judges makes it harder for judges to remain independent. But, the same day, the President responded, indicating he was not impressed by the Chief’s comment. See CBS news report here.   

It is not unusual for litigants to a lawsuit to complain at the end of an unsuccessful trial that they lost due to the judge. But, for the President to say that is very irresponsible. An important element of democracy is the rule of law. The rule of law replaced the rule of men centuries ago. Perhaps, every few generations, we have to re-learn that lesson.

Most lawyers avoid discovery sanctions like the plague. Yet, some parties accept the risk. One recent sanctions award amounted to $2.7 million. In a lawsuit entitled Goodyear Tire & Rubber Co. v. Haeger, the U.S. Supreme Court heard an appeal regarding that very lag sanction award. Justice Elena Kagan ruled in a unanimous opinion that the amount was too large. It exceeds the fees incurred by the wronged party due to Goodyear’s discovery abuse.

The parties had reached an agreement to settle the lawsuit when the plaintiffs learned that Goodyear had failed to produce the results of a tire test. The Arizona judge awarded sanctions based on the legal fees incurred since the date when the defendant failed to produce the requested information. The Supreme Court court, however, said that was error. The amount of the fees should be based on fees incurred due to the discovery abuse. The higher court required a “But for” standard that looks at the expenses incurred due to the discovery abuse. The court asks what would have been incurred but for the discovery abuse.

The plaintiffs responded that $2 million in attorney fees were incurred after the abuse was discovered. The parties would have settled otherwise, they argued. But, the Supreme Court noted the district court awarded $2 million in fees if the $2.7 million was overturned, indicating the district court did not believe the $2.7 million was directly due to the discovery abuse. The federal district court would have to reconsider its $2 million contingent award in night of the Supreme Court ruling. See ABA Bar Journal report.

The decision in Pena-Rodriguez v. Colorado did not receive much attention. But, it should have. In that case, a Mexican immigrant was found guilty of assaulting two teenage girls. After the verdict, a member of the jury reported that another member of the jury said some racist things about Mr. Pena-Rodriguez. The jury was all white. One juror, a former police officer, said he’s guilty “because he’s Mexican and Mexican men take what they want.” The same juror made several anti-Mexican comments. He dismissed the credibility of an alibi witness because the witness was an illegal immigrant. These statements are clearly racist. If these sentiments had been known, they would have kept the former police officer off the jury. But, because the statement did not come to light until after the verdict, it could not be used under the law in Colorado and in most states.

Most states have a version of the “no impeachment” rule, that provides a jury cannot be impeached after the verdict for things said during deliberations. There are just a few limited exceptions to the rule, such as when a juror considers something s/he should not have during deliberations.

The no impeachment rule dates back to common law England. But, as Justice Kagan pointed out, this is as good as “smoking gun” evidence gets. This statement clearly shows racist sentiment. By a 5-3 vote, the U.S. Supreme Court ruled that where prejudice is involved, the “no impeachment” rule must give way. The Sixth Amendment, which guarantees the right to a trial by jury, requires the courts to consider evidence of racial bias.

As the dissent pointed out, this ruling will invite scrutiny of jurors everywhere regarding what was said in the formerly sacred room, the jury room. It is common practice for lawyers to meet with jurors after a trial to discuss how they arrived at their verdict. If evidence of racial bias is fair game, then surely other forms of bias will also become fair game. And, yes, that does open a Pandora’s box. But, the alternative is jurors acting out of racist prejudice. And, that cannot be allowed. See Above the Law blog post here. The time may come when we move away from the jury system. England uses juries in only rare cases, now. See the decision in Pena-Rodriguez v. Colorado, No. 15-6-6 (3/6/2017) here.

So, the system in which union dues are collected from all employees remains in place. By a tie, 4-4 vote, the U.S. Supreme Court fails to reach a consensus opinion. That means the lower court’s opinions stand. In this case, that means unions win because most lower courts upheld the long-standing custom of deducting union dues even from those persons who are not members. See CBS news report. These fees from non-members may not be used for political activity.

The system of collecting dues from non-members exists in the 23 states and the District of Columbia which allow public sector unions. The theory is that non-members would get a “free ride” if they paid nothing. The non-members would get the benefit of a collective bargaining agreement but pay nothing for it.

I belonged to a union a few years ago. We did sometimes refer to the non-members in a semi-friendly way as “free-loaders.” They were getting the benefit of concessions won by the union without paying anything to the union. Unfortunately for some, if Justice Scalia were still alive, he surely would have voted to abolish the fees. Indeed, he surely expressed his opposition to these fees before his death. But, under the internal rules of the U.S. Supreme Court, his opinion does not count if he is not around when the final decision is issued.

This result also indicates what happens when a seat on the Supreme Court remains unfilled. The business of the country just does not get done. A tremendous amount of work by many people goes into one appeal to the Supreme Court. All that work is for naught when the final tally is 4-4.

As a country, most of us subscribe to certain precepts. These certain precepts keep things running in our country. One of those precepts is that the U.S. Supreme Court is the final arbiter of constitutional issues. Over the last couple of centuries, most of us have come to accept that Supreme Court’s role in deciding those “big” issues. That was not always true. Through the 1850’s or longer, many government officials would take it upon themselves to judge the constitutionality or rightness of federal laws. Now, universally, we wait for the Unied States Supreme Court to resolve the big disputes. The decision in Roe v. Wade rocked that precept as much as any decision has. But, still, most U.S. citizens do not seriously question the Supreme Court’s role in United States society.

So, it is surprising to me that some groups have targeted attack ads against the United States Supreme Court. Fox and MSNBC will broadcast ads that attack the U.S. Supreme Court as the least transparent branch of government. Well, yea. That is why it is called the Supreme Court. Folks do not routinely get to listen to private deliberations by judges. It does not work that way.Judges think, research, discuss and then announce their decisions. There is no camera watching them deliberate.

But, the group known as Fix the Court wants changes. It asks that oral arguments be broadcast live, make public announcements of decisions, that judges post their financial disclosures online, adhere to the code of judicial ethics for federal judges, disclose public appearances and allow press coverage, and to report reasons for recusals. See ABA Bar Journal report.

It is true that Supreme Court justices do not report the reasons for their recusal. Sometimes, there is some mystery about why a particular justice recused himself/herself from a case. So far, that mystery has not affected a case in any way. And, in fact, most judges across the country do not explain why they recuse themselves either.

Broadcasting oral arguments and making announcements about a decision that has been released. Really? That has been discussed over and over. Many judges, not just the nine justices, refuse to allow cameras or microphones inside a court room. Judges are loath to give up any control over their courtroom. I cannot blame them. Civil discourse inside a courtroom is indeed a precious commodity. Emotions run high. Perceived slights are everywhere. Judges are right to guard closely their tenuous control of the courtroom.

Fix the Court has some agenda. That agenda does not include the efficient, fair process of justice. My guess is someone wants to “adjust” or fine-tune the relative independence of the judiciary. We may, and often will, disagree with particular decisions, but we should never reduce the independence of the federal judges.