by Eric Segall
One of my New Year’s resolutions
was to be less critical of the Supreme Court or, if that was too ambitious, at
least take a deep breath and wait a few days before reacting to the Justices’
decisions. I knew that would take me out of the twenty-four hour news cycle but
maybe that was a small price to pay for a bit more detachment. Amazingly, my
resolve was tested before my first drink on New Year’s Eve.
One of the few administrative responsibilities
of the Chief Justice of the United States Supreme Court is to issue a year-end
report on the state of the federal judiciary. Although this summary may not be
high on most people’s holiday reading list, it is important to those with a
personal or professional interest in the federal courts. When is the report
issued? At 6:00 p.m. on December 31. Talk about dodging the news cycle. But don’t
think for one minute the Chief is busy writing on the last day of the year. The
report is written sometime earlier and, according to its very text, “EMBARGOED
until 6 p.m. E.S.T. December 31, 2014 (No wires, TV, radio, Internet, or other
formats before 6 p.m. E.S.T.)”
One of the only times the Court as
an institution talks directly to the press and the public is on New Year’s Eve.
This practice is a wonderful metaphor for the Court’s complete lack of
transparency across the range of its official duties. So before I respond to
this year’s report, a bit of a summary.
Unlike the Supreme Courts of Canada
and the United Kingdom, as well as a majority of our state supreme courts, our
nation’s highest Court does not allow any video or streaming of its public oral
arguments or decision days. The Court does not give any advance notice to the
public, the press, or even the parties to the case when a particular decision
will be issued. Although the Justices give public speeches routinely in their individual
capacities, few allow such events to be shown on television or live streamed.
Even the Justices’ individual votes whether or not to grant certiorari to the
roughly 75 of 7500 appealed cases are secret unless one of them writes a
dissent which is quite rare.
The Court’s lack of transparency
across the board has not gone unnoticed. Several public interest organizations have sprung up recently devoted
exclusively to the issue. The Chief Justice of the Ohio Supreme Court has written
persuasively about the need for cameras in our highest Court to reach young people
raised on social media and has also demolished in her words the “tired old
arguments against allowing cameras in the courtroom.” Rather than repeat those arguments
here it is enough to note the passion of a Justice of the Texas
Supreme Court who tweets proudly about his court’s successful use of cameras to
provide the public with better insight into the work of his court.
Is the Supreme Court moving in the
right direction? Hardly. The Chief’s 2014 year-end report repeatedly emphasized
how important it is for the Court to move slowly to embrace new technology.
Why? He really didn’t say other than to quote the jurisdictional language of
Article III of the Constitution (I don’t know why), and to hint that the Court
is uniquely susceptible to security breaches (why, again he didn’t say).
As if to prove his point, the only
mention of technological change the Chief even hinted at was the promise that
by 2016 all of the Court’s briefs, decisions, and other public documents will
be on-line. No mention of cameras, live steaming, more advance notice of
decisions, or any other change. To put the Chief’s promise in context, the rest
of the federal court system has for years used a comprehensive on-line system
for all pleadings that houses over 500,000,000 documents. Hooray that the
Supreme Court will join this club sometime in 2016.
Despite the increased public
pressure applied by new interest groups, academics, and even other judges, the Chief
did not discuss cameras or any other transparency issue in his year-end report instead
devoting a full 25% of his summary to the history of Pneumatic Tubing.
There are even more issues. The
Supreme Court reporters for the New York Times (Adam Liptak), the Washington
Post (Robert Barnes), the LA Times (David Savage) and USA Today (Richard
Wolf), are all excellent journalists of the highest integrity. They cover the
Court comprehensively and accurately despite great obstacles. Unlike reporters
who cover Congress or the President, they never get to ask questions directly to
the public officials they are covering in an official press conference nor is
there video they can use to double check their reporting. The Supreme Court of
Canada actually gives its press advance notice of important decisions.
All four of these journalists also
have to choose between being captive in the Courtroom during oral arguments/decision
days with no way to report in real time what is happening (and thus being late
to the social media game) or listening live in a press room outside the
courtroom but missing the impact of seeing the action. Mr. Liptak has spoken publicly
about that conflict.
One of the great ironies of the
current press policies of the Supreme Court is that most people use a blog, SCOTUSBlog,
to receive contemporaneous information about decisions even though the blog has
no official press credential and is run by an attorney who often represents
clients in front of the Court (no disrespect to its founder Tom Goldstein, an
outstanding advocate who has put in place all imaginable ethical rules to guard
against conflicts of interest between SCOTUSBlog and his clients).
Nevertheless, citizens in Omaha or Little Rock shouldn’t have to rely on a
privately run blog to receive current information about the decisions of the
highest Court in the land. Those announcements should be televised for all to
see (which would also solve the reporters’ inability to be in two places at the
So, I have modest proposal. The
country’s four major newspapers should unify on the issue of cameras in the
Supreme Court. All four in the past have published op-eds urging cameras. Such
a move would likely be covered by both cable and network news and would
generate at least some pressure on the Supreme Court. Perhaps the op-eds could
run the first Monday of every new term to drive home the point that our highest
Court should not be uniquely walled off from the press and the public.
Anything less than television coverage
of the Court’s already public oral arguments and decision announcements is just
one large insult to the American people. Moreover, once cameras are allowed in,
and the sky doesn’t fall, maybe other needed changes (such as advance notice of
landmark decisions and live streaming) will soon follow.
No one ever said New Year’s
resolutions were easy.