What the Chief Justice’s Report Did Not Address

very clear. We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them. That job obviously requires independence from the political branches. The Chief did stray from his usual detachment from politics by publicly rebuking President Trump for criticizing a federal judge who ruled against him, but there was no mention of President Trump or now Justice Brett Kavanaugh in Robert's year end report on the courts. Joining me is

Steve Sanders, a professor at Indiana University's Mars School of Law. Steve, why did Roberts clearly steer away from the controversy that dominated the news? Well, I think traditionally the Chief Justice's year end report about the Judiciary focuses more on the health of the judiciary itself, current issues affecting its workload,

current issues affecting the workplace of the federal courts. And I think he has confined his comments about what I might call separation of powers, that is the role of the judiciary versus the executive, to a few well chosen yet high profile a sort of public forums where he could get attention. This report is somewhat more bureaucratic this end of the year report, but it still focuses on an important issue. It focuses primarily on issues of incivility

and a sexual misconduct in the workplace. It notes that although studies indicate that although the judiciary does somewhat better and compares favorably on that score compared to other government offices,

it's not perfect. And so the Chief Justice, together with what's called the Judicial Conference of the United States, which is a couple of dozen federal judges chaired by the Chief Justice, is in the process of updating the Judiciary's Code of conduct and attempting to provide some new mechanisms so that workplace misconduct, workplace harassment, and incivility can be

more readily reported and dealt with. What this report seems to bring up, in my mind, is the problem of judicial accountability or the self policing of the federal judges. A well known judge on the Ninth Circuit, Alex Kazinski, retired after allegations of sexual misconduct, and so no action was taken against him, and eight three claim against now Justice Brett Kavanaugh were simply dismissed because he became a

justice of the court. So where is the accountability? Well, I think the Kavanaugh case probably has to be regarded as a unique issue and a unique question because it dealt with conduct of his that occurred for the most part, long before he became a federal judge. The allegations were aired in hearings and ultimately passed on. This report really is focusing more on the courts that do the day to day work, the district courts and the appellate courts

below the level of the Supreme Court. And I think this report is an effort to show that the judiciary can be accountable. And I think, like many self governing organizations that want to preserve their independence, the judiciary is one academia, universities and colleges or others. They need to show that they're taking the business of self policing seriously. And so I think that's what this report, focusing on a stronger code of conduct and longer reporting and disciplinary procedures,

is intended to do. Explain the Supreme Court justices and how they don't have to account, it seems to anyone for their actions. For example, if they sit on a case that people say there may be conflicts on, no one judges it. Well, that's right. The judiciary is generally supposed to be an independent branch of government, a coequal branch of government. But the Supreme Court is really a

sort of unique institution. There are codes of conduct and rules regarding conflicts of interest that apply to the lower courts, but not to the Supreme Court, and I think that recognizes that the Supreme Court really is a unique institution. There are only nine members. All of those members need to be confirmed by the Senate and appointed by the President.

I think the fear is that if Congress or other parts of government we're getting involved in the question of judicial recusal, that might lead to inappropriately political uses of that kind of power. And so we rely on the justices to decide themselves when they need to recuse themselves from a case, when they need to step aside when

there might be a conflict of interest. Remember, that's more difficult at the level of the Supreme Court, because if it's a lower court, you can always just assign the matter to another judge on that same court. In the Supreme Court, we don't have pinch hitters, we don't have substitute justices, we don't have acting justices, and so it becomes a very delicate balance to decide what are the merits of having the full court here in issue versus when do we want to be sure that justices are

impartial and don't have a conflict of interest. So, Steve, I know that you went where people fair to tread. That is the appendix of the chiefs report and the statistics there. Did you find anything interesting? The Supreme Court's workload continues to be not particularly heavy. Not too many decades ago, the court was hearing upward of ninety to a hundred cases. This here, the Court only heard seventy

one cases and issued sixty one signed opinions. Compare that the courts of Appeals received more than forty nine thousand filings just in the past year alone. The federal district

courts received almost two hundred and eight two thousand. The Supreme Court only hears and decides a tiny, tiny fraction of all the cases that are being litigated in the federal courts, and this underscores the importance of who gets appointed to these lower courts, as the Trump administration seems to recognize, because the vast majority of lawsuits that affect people's lives and rights are decided not by the Supreme Court but by the hundreds of district courts and the

dozen or so federal Courts of appeals around the country. That Steve Sanders of Indiana University's Mara School of Law, Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com s. Last podcast. I'm June Brosso. This is Bloomberg m HM.