Public trust in the courts is too high

Judges are ruling in favor of their financial interests at a staggering rate

A Gallup poll released last week found that public approval of the Supreme Court has hit 40 percent, a new low. It also showed that confidence in the federal judiciary overall is hovering near a 50-year low at 54 percent.

New reporting this week from the Wall Street Journal suggests that both numbers are considerably too high.

The Journal found that 131 federal judges broke federal law by “overseeing court cases involving companies in which they or their family owned stock.” Worse, “about two-thirds of their rulings on motions that were contested came down in favor of their or their family’s financial interests.”

So much for “just calling balls and strikes.”

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Two-thirds of federal district judges have disclosed ownership in individual stocks, and since 2010 roughly one in five of them violated the federal law preventing financial conflicts of interest. Given the widespread, pervasive nature of the rule-breaking, it seems likely that many additional judges simply failed to disclose their stock ownership, making their conflicts of interest impossible to track.

Most of the judges interviewed by the Journal say their failures to recuse were regrettable oversights on their part. Some claimed they didn’t understand the law — an incredible admission from the people tasked with interpreting it. These claims are hard to square with the finding that these judges ruled in favor of their financial interests two-thirds of the time.

In at least 60 cases, moreover, judges or their family members were “not only holding stocks in companies that were plaintiffs or defendants in the judges’ courts but also trading the stocks during cases,” the Journal found.

In one particularly egregious case Judge Emily Marks, a Trump appointee, purchased stock in Wells Fargo two weeks after she was assigned a foreclosure case involving the bank. Marks upheld a lower court’s ruling approving the foreclosure of an $80,000 home over what the owners contend was a single missed payment of $695. “This is outrageous,” the plaintiff said. “How am I supposed to know she owns stock in Wells Fargo?”

Indeed, finding out about these potential conflicts is virtually impossible. Judges’ disclosure forms are not online. Requesting one is a process that notifies the judge and can take years, according to the Journal. What good is a public disclosure form that effectively isn’t public?

Stories like this suggest that if there’s a crisis of public confidence in the judiciary, the judiciary has nobody to blame but themselves. In recent weeks a number of Supreme Court justices, including Stephen Breyer and Amy Coney Barrett, have done press tours to argue that the courts exist on a rarified plane untouched by worldly concerns like money and politics. Barrett made her remarks from a center named after the Senator who shepherded her rushed nomination during the final days of Trump’s term, while Breyer’s appearances have been in support of the sales of his new book.

All of it is frankly insulting. Federal judges are political agents, full-stop. They participate in the society they oversee. As the Journal’s reporting shows they are incapable of even bare minimum anti-corruption measures, like reporting and disclosing their own conflicts of interest.

The first step toward rebuilding trust is making disclosure forms mandatory, even for judges with no stock ownership to declare. Then put them online and make them easily searchable — the judiciary will likely howl about the difficulty of doing this, but the technology for it has existed since 1997 or thereabouts.

A more comprehensive fix would be to ban federal judges from owning individual stocks (index and mutual funds could still be allowed). It’s completely reasonable to say “in exchange for a lifetime appointment at a salary north of $200,000 a year, you will agree to put all your investments in index funds in order to avoid financial conflicts of interest.”

While we’re at it, we could do the same for members of Congress. They work for us, after all, not the other way around.