What short-term procedural changes could Congress implement to increase Court transparency?
Executive summary
Congress can adopt short-term procedural reforms to boost court transparency that are legally straightforward and already under discussion: require disclosure of third‑party litigation funding in civil cases (modeled on the Litigation/Litigation Funding Transparency bills) and mandate cameras or livestreaming in federal courtrooms via the Sunshine in the Courtroom approach; both have specific legislative texts or longstanding proposals in play (see H.R.1109 and related bills) [1] [2]. Broader, politically charged steps—binding Supreme Court ethics rules or a new enforcement mechanism—are actively proposed but face partisan obstruction and more complex constitutional questions [3] [4] [5] [6].
1. Make third‑party litigation funding immediately visible: low‑friction statutory disclosure
Congress can require parties and counsel in civil suits to disclose the identity of any non‑counsel persons or businesses who will receive payment contingent on case outcomes and to produce the underlying agreements; that is the core of the Litigation Transparency / Litigation Funding proposals introduced to amend Title 28 and has direct legislative text available (H.R.1109 and predecessors) [1] [7]. This change is narrowly targeted, easy for courts to enforce through existing discovery and sanction powers, and addresses a concrete transparency gap that courts and litigants currently navigate without uniform federal rules [1] [7].
2. Authorize cameras and livestreams in federal courtrooms: judicial discretion with a sunset test
Bipartisan bills such as the Sunshine in the Courtroom Act would allow federal judges to permit television and radio coverage of proceedings, typically keeping the decision at the judge’s discretion and adding study/sunset provisions to assess effects [2]. This procedural change does not rewrite judicial doctrine; it simply expands public access and can be rolled out incrementally—trial by pilot districts or a three‑year sunset as earlier proposals contemplated [2].
3. Fast‑track enforceable recusal and disclosure rules for the Supreme Court: politically contested but procedurally clear
Legislation like the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act would require the Court to adopt a binding code of conduct, improve disclosure when a Justice has connections to a party or amicus, and require explanations for recusal decisions [3] [4]. Those are procedural mandates Congress can write into law and could be implemented on an accelerated timeline, but they are politically contentious: Democratic sponsors press the bill while Senate Republicans have blocked unanimous‑consent attempts to pass it, showing how partisan dynamics can stall even procedurally focused reforms [3] [5].
4. Use modest jurisdictional and docket reforms to illuminate the “shadow docket”
CRS analysis and congressional reports identify options short of structural overhaul—changing how emergency motions and the motions docket are handled, or requiring more detailed published orders for certain summary dispositions—to increase public visibility into fast‑moving decisions [6]. These steps raise fewer separation‑of‑powers issues than sweeping institutional changes and would give the public clearer records about how and why quick rulings are issued [6].
5. Political headwinds and constitutional limits: why “fast” isn’t always simple
Although many proposals are procedurally specific, CRS and congressional reporting warn that certain reforms—limiting appellate jurisdiction, imposing voting supermajorities, or permitting Congress to override decisions—raise constitutional questions and are therefore riskier and slower to implement [6]. Even transparency measures directed at the Supreme Court encounter gatekeepers in both chambers: sponsors can draft detailed, short‑term rules, but passage depends on floor dynamics and strategic objections, as the SCERT unanimous‑consent episode shows [6] [5].
6. Tradeoffs: speed versus comprehensiveness; incrementalism versus overhaul
Practical short‑term steps—funding disclosures, cameras at judicial discretion, procedural obligations for published reasoning—are implementable quickly and produce tangible public benefits [1] [2] [6]. More comprehensive reforms (binding enforcement mechanisms for justices, jurisdictional limits) would address underlying accountability concerns but require extensive debate, risk litigation, and are more likely to stall politically [3] [6] [5].
Limitations and closing note
This analysis relies on recent legislative texts and congressional reporting showing concrete proposals (H.R.1109, SCERT, Sunshine bills) and CRS context; available sources do not provide exhaustive operational drafts for every short‑term implementation path nor predictive modeling of political outcomes [1] [3] [2] [6]. Readers should weigh which transparency wins—speedy, narrow mandates with enforceable disclosure rules, or broader but slower ethics and institutional reforms—best balance public accountability against constitutional and political constraints [1] [3] [6] [2].