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Fair Courts Update: Federal Judiciary Considers Financial Disclosure Rule for Amici

This Fair Courts Update covers new financial disclosure rules being considered for federal amicus brief filers, progressive support for Supreme Court expansion legislation, the creation of a court diversity commission in Michigan, and more.

Last Updated: January 14, 2022
Published: March 15, 2022

Federal Judi­ciary Panel Open to Broader Finan­cial Disclos­ures for Amicus Brief Filers

On Janu­ary 4, judges on the federal judi­ciary’s Commit­tee on Rules of Prac­tice and Proced­ure expressed interest in adopt­ing stronger finan­cial disclos­ure rules for groups that file amicus briefs in federal court rather than having new changes imposed by Congress.

The judi­ciary first began to consider changes to the current rule, which only requires amici to disclose whether a party provided finan­cial support for the prepar­a­tion or submis­sion of their brief, after Demo­cratic lawmakers intro­duced a bill in 2019 to impose new require­ments for amicus filers.

The bill, the AMICUS Act, would require any entity that files more than three amicus briefs a year in the U.S. Supreme Court or the federal appeals courts to disclose all donors who gave over $100,000, or 3% of their gross annual revenue.  

Five days before the panel’s meet­ing, Chief Justice John Roberts released his annual year-end report, in which he addressed recent efforts by Congress to reform the federal judi­ciary. Roberts wrote, "the judi­ciary’s power to manage its internal affairs insu­lates courts from inap­pro­pri­ate polit­ical influ­ence and is crucial to preserving public trust in its work as a separ­ate and coequal branch of govern­ment.”

Progress­ive Lawmakers Endorse Supreme Court Expan­sion Bill

On Janu­ary 5, the Congres­sional Progress­ive Caucus endorsed the Judi­ciary Act of 2021, a bill that would expand the U.S. Supreme Court by four seats, bring­ing the total number of justices from 9 to 13.

Accord­ing to The Hill, Rep. Pram­ila Jayapal, who co-chairs the Caucus, stated in a press release that this legis­la­tion is neces­sary because the current Court has been “filled by a partisan, right-wing effort to entrench a radical, anti-demo­cratic faction and erode human rights that have been won over decades.”

In recent months, the bill, which was intro­duced in the House by Rep. Hank John­son and the Senate by Sen. Ed Markey, has gained increased support from legis­lat­ors, most recently Sen. Eliza­beth Warren. In a Decem­ber op-ed in The Boston Globe, Warren wrote, “Rebal­an­cing the court is a neces­sary step to restore its cred­ib­il­ity as an inde­pend­ent insti­tu­tion, one that works for the Amer­ican people and not just for the wealthy and the power­ful.” “Without reform,” she says, “the court’s 6–3 conser­vat­ive super­ma­jor­ity will continue to threaten basic liber­ties for decades to come.”

Two Justices Dissent from Michigan Supreme Court Order Creat­ing DEI Commis­sion

On Janu­ary 5, the Michigan Supreme Court issued an admin­is­trat­ive order creat­ing a new two-dozen member commis­sion to “assess and work towards elim­in­a­tion of demo­graphic and other dispar­it­ies within the Michigan judi­ciary and justice system.”

Of the court’s seven justices, two dissen­ted. The commis­sion “will serve only to engender conflict and under­mine the public’s faith in the judi­cial branch as impar­tial arbit­ers,” wrote Justice David Vivi­ano in a dissent joined by Justice Brian Zahra. Both Vivi­ano and Zahra were nomin­ated by Repub­lican governors.

Justice Eliza­beth Welch, who will co-chair the commis­sion, wrote that this new body “will assist the Court in recog­niz­ing its defi­cien­cies and blind spots as an insti­tu­tion and an employer” and help build “a judi­ciary that is more reflect­ive of and better situ­ated to serve the people of Michigan.”

The Commis­sion will serve as an advis­ory body, but all proposed changes must be approved by the court before being imple­men­ted.

Judges Refuse to Recuse from Voter ID and Redis­trict­ing Cases in North Caro­lina, Arkan­sas

On Janu­ary 7, two North Caro­lina Supreme Court justices declined to recuse them­selves from NAACP v. Moore, a case chal­len­ging two legis­lat­ively-proposed consti­tu­tional amend­ments regard­ing voter ID and the state’s income tax, despite requests from the plaintiffs. One of the justices, Justice Phil Berger Jr., is the son of the state Senate pres­id­ent, and the other justice, Justice Tamara Barrin­ger, is a former state legis­lator who draf­ted the meas­ures being chal­lenged.

The justices’ decisions were announced shortly after the North Caro­lina Supreme Court issued an order allow­ing justices to decide for them­selves whether they should step aside when they have a poten­tial conflict. The Bren­nan Center filed an amicus brief arguing that inde­pend­ent review of recusal motions is essen­tial to preserving the public’s confid­ence in the courts.

Simil­arly, on Janu­ary 5, U.S. District Judge Lee Rudof­sky declined to step aside from State Confer­ence NAACP v. Arkan­sas Board of Appor­tion­ment. The case chal­lenges Arkansas’s newly drawn state House maps that were created by a three-member panel made up in part by Gov. Asa Hutchin­son and Attor­ney General Leslie Rutledge. The plaintiffs asked Rudof­sky to recuse himself because he had donated to both Hutchin­son’s and Rutledge’s polit­ical campaigns, and previ­ously worked as soli­citor general for Rutledge.