As public perception of the impartiality and integrity of the judiciary comes under increased partisan attack, it has become abundantly clear that public faith is integral to the judiciary’s very functioning. The Third Circuit has known this truth for years. It recognized as much in the 2013 case Delaware Coalition for Open Government v. Strine, which extended the public’s First Amendment right of access to a state-sponsored arbitration program. Other courts should now follow suit, both to vindicate the First Amendment right of access and to bolster the public’s trust in an embattled judiciary.
The Strine case involved a constitutional challenge to a 2009 Delaware law allowing state judges to serve as arbitrators. The purpose of the law was to preserve Delaware’s “position as the leading state for incorporations in the U.S.” Under the law, the judges on the Court of Chancery would be able to serve as arbitrators in confidential private disputes, inside the court house and during regular hours, as long as the parties were willing and able to pay “a filing fee of $12,000 and charges of $6,000 per day.”
The Third Circuit held that the law violated the First Amendment right of access, which grants the public a right to witness and obtain information about government proceedings. The test for determining if the right of access attaches to a given proceeding has two parts: first, whether “there has been a tradition of accessibility,” and second, whether “access plays a significant positive role in the functioning of the particular process in question.” The Third Circuit reasoned that there was a tradition of accessibility because the place and process of Delaware’s judicial proceedings were historically open to the public. The Court further reasoned that access was integral to maintaining public faith in the Delaware judicial system, including by facilitating public understanding of how business disputes are resolved, assuaging public concerns over the accessibility of expensive state-sponsored arbitrations, and discouraging misconduct on the part of litigants, lawyers, and the judges themselves. The concern that allowing parties to pay judges to serve as arbitrators would negatively impact public perception of the judicial system was also highlighted during oral argument, when the Appellee’s lawyer “conceded [that there would be] ‘much less of a problem’ if the Court of Chancery established a separate ‘arbitration department’ staffed by retired judges or special masters appointed to arbitrate.” The district court that heard the case before it was appealed to the Third Circuit was even more explicit about its concerns about public perception: that court stressed an active judge’s “special responsibility to serve the public interest,” and how that role is undermined “when a judge acts as an arbitrator bound only by the parties’ agreement.” Indeed, the district court emphasized that what prevents a sitting judge from acting as an arbitrator for even consenting parties is “the judge's public role and obligations.”
Arbitration’s susceptibility to “capture” likely contributed to these legitimacy concerns, and also brings up separate but related concerns about judicial independence. Generally, “providers of arbitration services might not get repeat business if they rule too often for the party opposing the one who is picking up the tab.” Inserting these kinds of incentives into the work of active judges who are supposed to be impartial can deteriorate the public’s confidence in the system. Put differently, the public’s perception of courts as uniquely “resistan[t] to capture” may be jeopardized if active judges are allowed to serve as arbitrators, particularly in proceedings that are paid for and closed to the public. Flagging these concerns in similar court-access cases could lead to more successful First Amendment challenges.
It is high time other courts adopt the Third Circuit’s analysis in Strine. To date, only one U.S. district court and the highest state court of West Virginia have adopted Strine’s reasoning. But both courts distinguished Strine on the facts, and found that there was no First Amendment right of access in those particular cases. Nonetheless, by finding “Strine’s theoretical arguments with regards to the rights of the public persuasive,” these courts recognized that, as Professor J. Maria Glover has written, “privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process.” In other words, the courts understood how active judges serving as arbitrators could have a corrosive effect on the public’s perception of the judiciary. As courts seek to shore up the public’s trust in the judiciary, they should look to expanding the First Amendment right of access as one way to both increase court transparency and explicitly acknowledge that the logic of court-access lies in its ability to enhance the integrity and influence of the courts.