Chapter 5: The Supreme Court’s Procedures and Practices
In recent years, Supreme Court observers have engaged in vigorous debates about how the Court conducts its work and explains its decisions. The Commission recognizes that the discourse about reform, in addition to focusing on the structural proposals discussed in prior Chapters, has also addressed the Court’s operations and its procedures for reviewing cases. As observers, including members of Congress, have emphasized, internal procedures and practices at the Court can have a significant external impact: They affect perceptions of the Court’s impartiality, the credibility of its rulings, and the clarity of its guidance for lawyers and for other courts. And they have real consequences for the parties in each case, as well as for the many people and institutions affected by the federal laws or constitutional rights at issue.
The Commission received testimony on a broad range of the Court’s internal procedures and practices. The testimony included criticisms and counterarguments, as well as proposals aimed at increasing transparency, improving procedure, and generating more visible adherence to standards of judicial ethics.[1] A number of Justices have also expressed their views on some of these issues in written opinions and public discussions. Although it is not the Commission’s charge to present suggestions to the Court, we are tasked with examining prominent debates about the work of the Court; and this task entails addressing a range of proposals from witnesses and commentators, including policies the Court would be able to implement on its own.
This Chapter focuses on three sets of issues. While some of these issues have become more salient under the pressure of recent events, others have been the subject of longstanding public discussion, debate, and analysis. The first issue is the Court’s use of emergency orders, issued without the usual rounds of briefing or oral argument and often without a written explanatory opinion. The second is judicial ethics. The third is public access to the Court’s proceedings. In addition, Appendix D to this Report details analyses offered by witnesses before the Commission about the sources of advocacy and information provided to the Court.
