The United States Supreme Court conceals the names of lawyers that belong to the Supreme Court Bar. This lack of transparency is unusual and raises multiple concerns. If the Supreme Court fails to follow the example set by courts across the country and publicize its bar membership, then Congress ought to intervene.
Last month, the Supreme Court heard the first oral arguments of its fall term. As is true each term, it will fall upon members of the largely unknown Supreme Court Bar to argue the country’s most pressing concerns before the highest court in the land. However, this showcases a problem. Although it is relatively easy to locate the name of a lawyer who argues a particular Supreme Court case, a public database to view the entire membership of the Supreme Court Bar does not exist.
What is known is that the Supreme Court Bar consists of a relatively small number of lawyers who are then given full discretion over whom to sponsor for admission to a bar that is administered by the Supreme Court itself. This lack of transparency contributes to a culture in which lawyers are capable of charging hefty amounts for their appellate services, perhaps at the expense of providing legal services to the most aggrieved in our society. It is also out of sync with the practices of scores of courts across the country, inhibits the formation of a Supreme Court Bar Association, and presents a matter ripe for congressional intervention.
Survey of Bar Membership Transparency Policies
A majority of federal appellate courts, i.e. seven of thirteen, maintain websites in which members of the public can determine whether or not an individual is a member of their bars. More than twenty federal district courts also maintain such databases. Strikingly, nearly every state bar maintains a public membership database. The matter of state bar membership databases is in fact so common that the American Bar Association maintains a list of such websites, although its list appears underinclusive.
This data begs the question, if dozens of federal and state courts across the country, and the British equivalent of the Supreme Court Bar, have already made their bar memberships at least searchable, why is the Supreme Court not doing the same?
Possible Reasons for the Supreme Court’s Failure to Publicize Its Bar Membership
One possible reason is inertia. The Supreme Court is a slow-moving body that is uniquely capable of taking the long view by virtue of being largely removed from politics. The Roberts Court in particular is concerned with modesty, as the Chief Justice himself mentioned during his confirmation hearing. The Justices are also busy writing opinions, reviewing briefs and hiring law clerks. Under such circumstances, lawyers, litigants and members of the public may be loath to request access to the full membership pool of the Supreme Court Bar, especially when they can always attempt to persuade Supreme Court staff to divulge the membership status of a particular lawyer.
A second possible reason for the Supreme Court’s failure to make its bar membership public could be lack of funds. However, this seems implausible. On Dec. 20, 2019, President Trump signed the Consolidated Appropriations Act, 2020 into law. This bill provided nearly $100 million for the Court and is similar to appropriation levels from previous years. Given the fact that the Court has broad discretion over such lofty sums, creating a database similar to those maintained by lower courts with fewer funds would likely prove little trouble for the Supreme Court if it valued the transparency provided by a public membership database.
One final reason for the Court’s refusal to create a database of its bar membership could be fear of violating the privacy rights of its bar members. However, this concern flies in the face of reason. Membership in the Supreme Court Bar is an honor and the reputation of members would only be enhanced by having their identities known. While suddenly publicizing the bar’s roll might lead to an increase in the number of lawyers who approach current bar members for sponsorship, the Supreme Court could easily address this concern, if it really desired, by allowing its bar members to opt out of being listed in the public membership roll.
Likely Effects of the Supreme Court’s Failure to Publicize Its Bar Membership
The Court’s failure to make its bar membership public adds to its transparency deficit. As numerous commentators have noted, the Court refuses to allow television cameras in the courtroom and does not post live audio recordings of oral arguments to its website under normal circumstances. The combined effect of these policies is a high court whose real time proceedings are typically hidden from all but the few members of the public who wait hours outdoors and those members of the Court’s bar who skip the general line by exercising their privileged status. Real time electronic recordings of any sort remain off limits.
Another likely effect of the Court’s failure to make its bar membership public is the possibility of an inaccurate membership roll. Without the need to make its membership public, it is entirely possible that the bar’s roll includes deceased members or others who are no longer eligible for membership. By publicizing its roll, the Court would be challenged to ensure that its list is accurate. Doing so would also create the space for active members of the bar to unite and establish a Supreme Court Bar Association, as is common at every other level of the legal profession.
It is also entirely possible that the Court’s failure to publicize its bar membership has impeded its ability to attract a diverse bar membership. However, this could only be conclusively stated if the Supreme Court Bar’s membership were made public.
Proposed Solutions to the Supreme Court Bar’s Lack of Transparency
Fortunately, the solution to this lack of transparency is quite simple. For likely less than a token amount, the Court could follow the path that many other courts have taken by creating a public membership database. Yet, given its track record, this option appears unlikely.
Absent judicial initiative, Members of Congress could send a letter to the Supreme Court encouraging the Court to make its bar membership public. However, should the Supreme Court still refuse to publicize its bar membership, Congress could pass legislation requiring the Court to establish a public membership database. Such legislation would be easy to write, as demonstrated by my draft of The Supreme Court Bar Transparency Act of 2020. This bill could be passed on a standalone basis or else attached to a Commerce, Justice, and Science (CJS) funding bill. No legislation appears to have been introduced to address this matter by any Congress on record.
Conclusion
For the time being, the Supreme Court Bar’s membership remains shrouded in secrecy. Failure by the Supreme Court to make its bar membership public, or of Congress to pass legislation mandating such action, would leave the Supreme Court Bar in its current unorganized and opaque state, even as the Court itself continues to receive millions of taxpayer dollars. A Supreme Court that valued transparency would therefore do well to publicize its bar membership and Congress is otherwise justified in taking action to address this matter–especially given the increasing concern with Supreme Court reform proposals. Members of the Supreme Court Bar should also speak out on the secrecy of the Supreme Court Bar, as should judges, lawyers, journalists, civil society leaders and members of the public who value government transparency.
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November 28, 2020 at 10:08PM
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