Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hello, my name is Sydney Nelson, a student at Harvard Law School, and today I'm joined by Andrew Garcia, a fellow student and classmate. He's joined us to discuss a blog post that I wrote, the third in a series about exploring how to increase access to case information to improve access to justice more broadly.
And today we're going to be talking about the importance of judicial transparency, judicial accountability and independence, and ultimately the rule of law and access to justice.
[00:01:06] Speaker C: All right. Hi, Sydney.
[00:01:08] Speaker B: Hey, Andrew.
[00:01:09] Speaker C: Happy to be here. Can you share a little bit about what made you interested in this topic?
[00:01:15] Speaker B: Yeah, definitely. So for anyone who's already listened to my first two podcasts since I've mentioned it a little bit there, but I'll recap it here as well.
Last year I spent a semester researching the litigation experience of pro se prisoner litigants versus non pro se or non prisoner litigants. And I encountered a lot of difficulties in pulling data to compare the two categories from comparing data from the federal case record system for the federal judiciary, which is called pacer, which stands for Public Access to Court Records. So given my difficulty in sourcing data from pacer, I then wrote a research paper on general access to data from the federal judiciary, which then inspired my past two posts with the Access to Justice Lab on open data and user design as it pertains to case record access.
And this whole challenge I've experienced in sourcing clear court data has made me think about its implications to the rule of law more broadly, particularly because I spent last summer working in Hungary to promote the rule of law. And it's been top of mind for me as I've been back in the United States.
[00:02:21] Speaker C: Okay, that's. That's very interesting. Thank you for sharing just a little bit more on that point. Will you tell us how access to court data connects to the rule of law?
[00:02:32] Speaker B: Yeah, definitely. So, by design, a little history lesson here that I'm sure you as a fellow law student know full well, but by design, our federal judiciary was structured to foster independence.
This was in recognition that in Order to promote the rule of law, judges may need to make decisions that are unpopular in order to not yield to the majority at the expense of the minority.
And our Constitution fosters this independence by providing for judges to be appointed for life and then insulated from threats to their salary or tenure. There's a line in the Constitution that goes, the Sally cannot be, like, diminished, and you're going to be in office for good behavior. And so I think it's helpful that you see this judicial independence theme in our Constitution and. And in the field, it's often thought about in two different types. One is institutional independence. So that is where the judiciary is protected from undue influence from other branches of government.
And there's a second thing called individual independence. And this is where judges make decisions that are free from undue influence from outside parties. So one is about the institution as a whole, another about the individual judges as actors.
And thinking about these judicial values at those two levels and multiple levels is a theme across other judicial values as well.
Because often when there's institution as a whole, we're worried about preserving the sanctity of that, and we're worried about enabling individual actors in that system to act accordingly with our values.
An example of judicial independence being threatened is happening to us in real time right now. So we've seen the current presidential administration make comments and attacks, verbal attacks, about individual Justices, including justices on the Supreme Court.
And this kind of intimidation is exactly what the founding Fathers were trying to prevent.
[00:04:19] Speaker C: So the founding Fathers were all about checks and balances. Right. We know that. What kind of checks and what kind of balances are there for the judicial branch?
[00:04:28] Speaker B: Yeah. So great question. Often in discussions about judicial independence, there's another term brought up in conjunction, and that's judicial accountability.
In judicial independence and judicial accountability have been described as two sides of the same coin.
Accountability ensures that judges perform their constitutional role, and judicial independence protects judges from pressures that would pull them out of that role.
So judicial accountability is this idea that judges must be accountable to the public for their constitutional role of applying the law fairly and impartially.
And like judicial independence, judicial accountability can also be broken down further here. Rather than two, there are three types. Institutional, similar to independence, behavioral. This one's new. And then decisional.
So institutional accountability concerns the judicial branch as a collection of judges, similar to how we talked about judicial independence and institutional independence. But then looking at those individual justice and judges, there's something called behavioral accountability, and that's behavior of judges on and off the bench.
Then there's something called decisional accountability, and that focuses more on the law that judges are creating and the rulings that a judge makes.
So judicial accountability in all three forms is considered essential to ensuring that judicial independence is promoted. And this goes back to my, like how I started off this conversation all feeding into upholding the rule of law, because under the rule of law, justice is accessible, just and impartial, which is all promoted by these kind of values of independence and accountability.
[00:06:04] Speaker C: Yeah, it's really interesting to think about the interplay between traditional independence, as you've described, and accountability.
But how do you get there? How does one actually create judicial accountability?
[00:06:16] Speaker B: Yeah, so this is my problem and the problem that I've been wrestling with when it comes to accountability. If we think about the other branches, there's some really good examples of how accountability works there. So, for example, the federal executive branches and the legislature are largely thought to find a legitimacy in and be accountable via elections. And they also do a lot of work to hold each other accountable. You'll see when the legislation legislature calls in a member of the executive branch for a hearing, that's a form of accountability happening between the branches. So you have both the public and the branches themselves that can hold each other accountable. But when we think about the federal judiciary, those same ingredients aren't there.
And so when you look at elections, for example, what's interesting is despite the public's inability to directly choose their federal judges, because federal judges are appointed, the public has largely regarded the judiciary more favorably than its other two branches of government, which includes people that the public elects. So there seems to be a lot of faith from the American public in the system. And the idea that there's a kind of blind faith that the system works the way it's supposed to when it comes to the federal judiciary. And the judiciary has benefited from that public goodwill because the judiciary has historically been the most trusted branch in the American government.
However, in the last 25 years, Americans confidence in the judiciary has dropped nearly 30 percentage points, down to 49% in 2025.
And this is compared to a semi similar job with the legislature, which has always been regarded less favorably by the American public, but the executives only dropped 20, 22%. So what you're seeing is that Americans are having less faith. The federal judiciary is operating how it should be.
And so this question of accountability has become even more pressing. And how do you even get to accountability? Is something I've been thinking a lot about.
[00:08:06] Speaker C: Right. So if we don't have elections and the public's Faith in the judiciary is declining.
What steps could we as a country, or maybe even the judiciary itself, take to enable that same accountability?
[00:08:20] Speaker B: There's a really good quote that I like to mention. It's from the previous U.S. supreme Court, Justice Brandeis, and he said that sunlight is said to be the best of disinfectants. And he was referring here to the benefits of transparency in politics and in government and reducing corruption. And my current theory is that we lack meaningful judicial transparency, and that in turn is creating problems when it comes to judicial accountability, independence, and the rule of law. And I use the term here, meaningful judiciary transparency. So I'm going to describe in a second all these things that we have that you were transparent, but when you start to pull back the curtain, make you think it's not as effective as it should be. So, for example, we have case law from the federal courts themselves that says we as a system promote judicial transparency, that our federal court system is supposed to operate under a presumption of public access.
And this is seen, for example, in 1980, the Supreme Court decided a case, Richmond Newspapers, Inc. Versus Virginia. And there the court said that the right to attend criminal trials is implicit in the guarantees of the First Amendment. The idea that you should be able to have a court your day in court, in that courtroom in the case is public. The Supreme Court recognized that in this case, Richmond Newspapers, and this reasoning also has been applied to written proceedings available in courthouses. Two years before Richmond, the Supreme Court in Nixon v. Warner Communications said that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. And so there's this idea that if you have a judicial proceeding, whether that's physically in the courtroom or paper, and your filings, that should be available to the public.
However, a lot has changed since we used to be a paper based system. A lot of our world operates digitally now. And some scholars have argued that this idea of presumption of public access has not cut pace with the times.
So in particular, when it thinks about our court records and digital court records, in that PACER system I mentioned, the public is charged a fee to access those digital court records on pacer. And some scholars have argued that this fee violates that presumption of public access because it puts a paywall in place, the public's ability to access court records. So you can think of how the court's own case law and public access to judicial records says one thing, yes, judicial transparency, but has failed to develop or be meaningful, applied as Circumstances have changed.
[00:10:49] Speaker C: Okay, so it seems like, I guess case law hasn't really scratched the surface, hasn't really saved us entirely. What about the checks and balances system? Could another branch push that forward?
[00:11:03] Speaker B: Yeah, and I know you had mentioned that earlier and so I appreciate you looping back on that here and like, okay, so what can they do?
And what's interesting is what I mentioned here is a court has failed to extend legal reasoning to digital documents through case law. What we have also seen is that Congress seems hesitant to enforce or implement transparency standards on the judiciary.
So this is in contrast this Congress's hesitancy to tell the judiciary you have to do X, Y and Z when it comes to being transparent.
Contrast with Congress's willingness to pose transparency measures on the executive branch.
For example, there are three major transparency acts of Congress that pertain to the access and publication of records and information.
You had the Freedom of Information act, which was passed in 1966 and most recently amended about 10 years ago in 2016.
And FOIA provides the public with the right to request records from any federal agency. So you'll often hear someone, oh, I have FOIA that or a journalist say, I put a FOIA request to the government and that's them telling, asking the federal government, I have a right to access documents. Will you send these documents to me?
Then you have the E Government act of 2002, which this established a broad framework for the use of technology to promote and enhance access to government information.
And then lastly you have the Open Government Data act and this passed in 2019. So this is the most recent act. And my first blog post and podcast in this Apps to Justice series discussed the importance of this act and how it required federal agencies to publish their information online as open data using standardized machine readable data formats. So basically this idea that data should be easily accessible and that you should publish it in a way that allows other people to take that data and use it easily to draw trends and analyses from.
So going back to that question of checks and balances, Right?
[00:12:55] Speaker C: Yeah.
[00:12:55] Speaker B: The traditional argument has been that Congress has the power to provide financial and operational oversight over the federal judiciary. You hear this term a lot like Congress holds the purse strings, right? That is the idea that they have some level of check against the judiciary branch.
However, the judiciary in reality is often resistant to efforts that appear to implement that or encroach on their own sphere of influence.
And they often assert that oversight interferes with judicial independence.
And for example, the judiciary has defended about its ability to self regulate and self monitor and responses to legislation that Congress has proposed about opening up transparency but ultimately have failed in Congress. And the judiciary's most recent strategic plan emphasizes the importance of self enforcement. So there's this idea within the judiciary that in order for us to maintain our independence, we are the ones that hold ourselves accountable and no one else can. And that we should be trusted to self monitor, self enforce, and we will decide kind of what our transparency standards will be because we know us best. And any further involvement would lead to encroachment. I'm not sure. I don't think that actually bears out. I think there's a way to design the system that allows for meaningful transparency, or the judiciary themselves could take steps to lead the front on transparency that would then enable all of these problems that I'm raising that Congress could potentially fix with legislation to not be an issue.
[00:14:18] Speaker C: Right, but considering how Congress has been, I don't know if I'll hold my breath on that.
[00:14:22] Speaker B: I know, but
[00:14:24] Speaker C: in principle, it seems that our system is supposed to do one thing in theory, but in reality, it doesn't seem that easy, to say the least. You mentioned though, that only one piece of those transparency legislations even applied to the federal government in the first place. Which one was that one?
[00:14:40] Speaker B: Yeah, it's a great point. I'll give Congress credit for that one. I am obsessed with the E Government Act. Big fan. It was passed in 2002, and that's the one.
All the three acts that apply to the executive branch, that's the one that applies to the federal judiciary. And what's interesting about this act is there's a special section in it for the judicial branch. And this is in this section, Congress requires each court to make available online document information for each case, all documents filed at the courthouse, and all written opinions. So it's basically Congress saying to the judiciary, you need to publish these things online.
And this requirement is part of the reason why pacer, that court record management system, became draining. And I talked about the adoption of PACER in my second blog post and podcast. But what I don't mention is that the judiciary promoted PACER to the courts as a way for courts to comply with the requirements of the E Government Act.
However, I think it's a little ironic that the Congress said, please publish these things online.
And then what happened was judiciary said, great, we'll do that, and we're going to charge you money to access them. It feels a little bit like a switch in beat.
But what I'll also mention is that the Categories of information that the act requires courts to fulfill have a lot of discretion and leeway built into them. And there's not a lot of signs that there's verification of these requirements being met by the judiciary.
So, for example, two major exceptions to the requirement that information be publicly available.
One exception is that documents that are not otherwise made available don't have to be made available. And two, the other exception is that private information and personal data identifiers are supposed to be redacted. Think your Social Security number, for example, Right? If that shows up in a court filing, the app says, please do not make that. Oh, the act refers to another thing which then says, do not make that public. Let's not be putting people's Social Security numbers out on the Internet.
However, courts are ironically, both too liberal in what's called ceiling, which is where documents that are not supposed to be made available are not made available. That's ceiling. So courts are too liberal in sealing documents, keeping them from the public in under inclusive. When it comes to redacting personal data identifiers, yeah, not what we want to see. We'd rather have the other way around, but. So, for example, when we talk about ceiling, documents under seal are not required to be available to the public. So there's some kind of security reason or risk that the courts have decided exists that requires it to be sealed and shield from the public eyes.
However, scholars have argued that sealing is overused.
And motions to seal are among the most common filings that we see come through our courthouses. And there's growing evidence that judges are not holistically evaluating motions to seal them before granting them because there are so many. They're just rubber stamping it and moving it along. And so I would argue that some judges might not be the most reliable when it comes to closely monitoring what is and is not published.
Another trend of where a requirement isn't being fully adhered to or there's room leeway that's giving us some doubt is that personal identifiers, those Social Security numbers I mentioned.
So they often get missed in reduction and become publicly available.
And Carl Malmud, the founder of PublicResource.org conducted an audit of 32 district courts, and he identified at least 1669 documents that had verified Social Security numbers and other issues in violation of these court rules and what has been promulgated. And what was interesting is when he tried to hunt down and tell all these courts, hey, you have this issue, you have this issue. He said it was really hard to get courts to take action and that he's pretty convinced that documents that he flagged years ago are still publicly available online.
So part of the problem here is that the judiciary is pretty decentralized, right? You have the federal judiciary branch as a whole, but all of those judges, all those individual judges have a ton of individual discretion and how they manage their courtroom, how they manage their courts broader and in how they comply with these public access requirements.
So the record for current cases are not always as publicly available as they should be when it comes to stealing, for example, or in some cases too available when it comes to personal identifiers, when it comes to judges actions.
So this makes me think, right, yes, we have the E Government act of 2002, which I love, and it immensely helped in terms of getting PACER to be used and pushing case records out there and getting them published. But I want to qualify the extent to which the spirit of the law matches its implementation. And that there are standards and requirements that maybe are not fully met in the ability to access these records, to even check if they're met or not is really challenging. So there's a lot to be desired in this space.
[00:19:24] Speaker C: Okay, so Sydney loves EAM Government act of 2002. But it sounds like there's still judicial transparency problems. And where there's a lack of judicial transparency, that is then making it hard to ensure judicial accountability and independence. We see this issue in Access to Justice. But given that it is an Access to Justice podcast, how if we hone in there, how do we tie that to Access to Justice?
[00:19:51] Speaker B: Yeah, I appreciate that. Put a fine bow on that, given we are the ATJ lab. So basically, increased transparency would help the public evaluate how close the judiciary is to meeting its constitutional role and its own strategic goals. And notably, one of the core values of the federal judiciary is equal justice, which is described as fairness and impartiality in the administration of justice, accessibility of court processes and treatment of all with dignity and respect. And these principles all align with the fundamental value of access to justice.
And for folks listening, the Acts to Justice gap is very real. But however, without transparency, it is challenging to measure the extent to which this gap pervades our federal judicial system.
The data and information needed for researchers, academics, the public, myself to understand the current state is artificially out of reach because of all the issues I listed here.
But my takeaway is that something needs to change, that the current posture is not sustainable. We have public trust declining the rule of law is increasingly under attack and Acts to Justice remains very elusive. And that we as the American public should be pushing for measures that further promote digital transparency, thereby enabling all these things that we've talked about independence, accessible and accountable judiciary. And as I saw in Budapest this summer, these are questions that are plaguing countries all over the world. And I think it's more important than ever to be having transparent conversations about where democracy can and should do more. So thank you for being part of that.
[00:21:24] Speaker C: Awesome. Thank you. I really appreciate you sharing all your research and having a chance, or at least making the time to discuss all the important things that judicial transparency kind of touches on, especially when it comes to access justice and the rule of law.
[00:21:38] Speaker B: Thanks so much, Andrew. I really appreciate you joining me today for my final blog 3 and podcast 3 on this topic. I've really appreciated it.
[00:21:46] Speaker C: All right,
[00:21:47] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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Here's a sneak preview of what we'll bring you next week.
[00:22:12] Speaker D: So welcome to this podcast. As part of my work at Access to Justice Lab at Harvard Law School, I've been researching how the structure of consumer contracts can affect consumers ability to seek remedies after data breaches and access justice.
