Supreme Court Transparency (Or Lack Thereof)

By Eric Segall

On Wednesday of last week I co-moderated (along with Eric Berger) a panel on Supreme Court transparency at the Southeastern Association of American Law Schools (SEALS) conference. It was a fascinating discussion covering mostly the lack of cameras at the Supreme Court but also the Justices’ anonymous votes on granting or denying certiorari, the Court’s recusal practices (or lack thereof), and the lack of rules concerning their taxpayer-funded papers. Diverse views were expressed and, to my surprise, there were numerous thoughtful folks in the room not altogether sure that more transparency in the Court would actually be a good thing. I want to discuss a few of the highlights here though I cannot do justice to the entire conversation.

Mark Graber of the University of Maryland got the ball rolling by suggesting that perhaps transparency was not always a positive force. He asked whether any of us would openly admit that we were sitting in this delightful conference room in this beautiful hotel in Boca Raton, Florida, discussing transparency mostly or fully because we like school-paid boondoggles?

Mark argued that the public may obtain the Court’s written opinions as soon as they are announced, that the written transcripts are provided shortly after oral arguments, and that during every public day at the Court there are numerous journalists who can report on what transpired. He didn't see what television would add and also dared anyone to suggest anything that television cameras has improved. He didn’t like my “hockey in HD” response, suggesting that the NHL was all about fights and I should go to college hockey games to see the real sport played.

Mark Kende of Drake agreed tentatively with Graber and suggested that perhaps we should study other countries such as Brazil and see what their experiences have been with cameras. Mark K. showed a bit of concern that a Justice on Brazil’s highest court has amassed quite a cult following due partly to his being on television and could that happen here and would that be a good thing? Sonja West of UGA later mentioned that virtually all fifty states and numerous foreign countries have in fact used cameras in courtrooms with universally positive experiences.

Mark K. also suggested, and numerous folks including my co-moderator Eric Berger agreed, that the real problem of Supreme Court transparency that we should be concerned about is the consistent failure of the Justices to give adequate reasons (including admitting the weaknesses of their own arguments and the strength of opposing arguments) in their final written opinions. Mark K. opined that none of the issues we were discussing would be able to solve that problem. I agreed that was true but also said that more transparency might alleviate other problems, such as the issue of aged and infirm Justices.

Mark Tushnet of Harvard observed during his opening remarks that some of the Justices seemed to have open minds on allowing cameras in the Court during their confirmation hearings only to change their positions after they ascended to the bench. He used this phenomenon, along with life tenure and the fact that the Justices are rarely disagreed with in person, to suggest that some of them (maybe most, but not all) resemble “narcissistic children.” Mark T. pointed out that the Justices are often told (and possibly come to believe) that they are the center of the universe (just like children believe), but they also may not be sure that they deserve to be. This insecurity, along with fear that their colleagues may misbehave, Mark T. suggested, might at least partially explain the Justices’ refusal to allow cameras in the Court.

Mark T. also suggested, in response to my complaint that cert. votes are secret, that if the Justices had to reveal those votes, they would simply take a private, straw vote first and for those cases where there were four or more votes to hear the case, they would then unanimously agree publicly to hear the case. After the meeting, Corinna Lain of Richmond suggested that she thought Mark T. might be right but that there were examples of Justices making a big point to dissent from the granting or denial of cert. (think Brennan and Marshall in death penalty cases), and therefore maybe the straw vote ruse would not work.  I was thinking that, if Mark T. were correct that the Justices would evade a requirement that cert. votes be made public in the manner he suggested, perhaps he is also right about the Justices acting like “narcissistic children.”

I had suggested at the beginning of the discussion that there is a presumption of transparency in a representative, constitutional democracy. Therefore, since the Court’s hearings were already public, and C-Span was ready, willing and able to televise them, there would have to be very good reasons not to show them. I also said that no one knows whether adding cameras will produce good or bad results and therefore the tie should go to transparency. Other folks chimed in that there is something positively good about seeing as opposed to listening to the arguments, especially in our culture where people are used to visual learning. Corinna told an amusing anecdote about her mother watching congressional hearings on C-Span because she wanted to learn “how government works.” Corinna then suggested that maybe putting cameras in the Court could actually have some negative unintended consequences.

Akram Frazer of the Duncan School of Law suggested that there was a strong value in actually seeing the Justices at oral arguments and decision days that reading cold transcripts or hearing audio transcripts could not duplicate. Sonja mentioned that it is unlikely many folks who are not avid Court watchers would take the time to read the transcripts or listen to the audio but that a lot of people might well watch Court proceedings on television. To support Sonja, Akram recounted that he once saw his mother turn off a Charlie Rose interview when the video failed even though the audio was clear as a bell. A few of us suggested that Akram’s and Corrina’s moms should meet.

Bill Araiza of Brooklyn argued that we should be very clear what the goals of transparency are before we add cameras to the Court or make cert. votes public. He pointed out, for example, that oral arguments are just a small snapshot of the work of the Justices and the general public might give them undue weight if they saw them on television. Bill didn’t take a strong position about cameras but was concerned that allowing them would in the end provide less rather than more (or accurate) transparency.

Lynne Rambo of Texas A & M made the point that as things now stand sophisticated Court watchers have many ways of accessing information about the Court through blogs, the Court’s website. etc., but most of the public doesn’t have those tools. Sonja buttressed that point by pointing out that most Americans still don’t know that on the last day of this year’s term, a full weekend after the same-sex marriage decision, Justice Scalia gave from the bench (out of seniority order) a concurrence in the death penalty case that was both rambling and included more invectives about the same-sex marriage decision decided the previous week. Most Americans still don’t know about that speech because the Court’s proceedings were, of course, not on television.

Lynne then presented an utterly persuasive (to me) account of the broken recusal process at the Court. Each Justice decides for himself or herself with absolutely no review by anyone whether his or her participation in a case is appropriate. Moreover, in the entire history of the Court, only three times has a Justice filed a written response to a recusal motion. Chief Justice Roberts, Lynne pointed out, defended this complete lack of process in his 2011 end of the year report of the Court (distributed annually at 6:00 on New Year’s Eve), by simply saying something to the effect of “I trust my fellow Justices and so should you.”

I came away from the discussion with two major thoughts. First, the “trust us” approach of the Justices on many of these issues should be quite troubling. I have pointed out before on this Blog that the Justices are governmental officials exercising coercive power. We normally try to put mechanisms in place to protect the public from secret government activities by their leaders. The Supreme Court should be no different, especially in light of life tenure. In fact, Mark G. made the point during the discussion that many of the complaints about the lack of transparency at the Court are really placeholders for opposition to life tenure. I think there is a lot of truth in that observation. We are, after all, the only country in the world where Supreme Court Justices serve for life.

Second, hyperbole aside, Mark Tushnet’s observation that at least some of the Justices exhibit the qualities of “narcissistic children,” should be taken seriously in that the Justices do occupy a unique office (these next views are my own, not Mark’s). The Justices cannot be fired absent the commission of a crime so they are not accountable to anyone, and when five of them agree, they have virtually unreviewable power. It would take a person of enormous character to both not be “spoiled” by such a position and a person of enormous ego to think they actually deserve such a position. Thus, it is not surprising that they are conflicted between wanting to be seen (the ego part) and not really wanting to be seen (the “I don’t really deserve it part”). But, they are public officials and there should be a strong presumption of transparency and openness in how they perform their jobs. With no cameras in their courtroom, secret votes on which cases to hear (and why), no rules on when or even if their taxpayer-funded papers become public, and no review of individual decisions whether or not serving on a case would be improper, we are worlds away from an open and transparent Supreme Court of the United States.