Monday, August 03, 2015

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.


Vilhelm S said...

Who would review recusals? Are there any concrete proposals for how this would work?

Eric Segall said...

Perhaps the other Justices or a special panel of DC Circuit judges. There are ways.

Unknown said...

I am hard pressed to think of three problems which cameras in the courtroom and only cameras in the courtroom can fix. Do You have any thoughts on this point?

Eric Segall said...

It is not an issue of "fixing problems." The Court's proceedings are already public, C-Span is ready and willing to televise them, there need to be strong reasons not to do it (and there aren't). I'd love to show my students the arguments in Brown, Roe, Citizens United, etc., and those arguments are part of American history. They should be recorded.

Unknown said...

I don't think the other justices on the court could review recusals. Recusal could be used as a means to get a particular Justice off a particular case, and so the very existence of the mechanism would politicize the Court in a way that is contrary to its function. I don't think that kicking the review down to the DC Circuit would make a difference. This would now politicize the relationship between SCOTUS and members of the DC Court. Far more significant than these mechanisms is shame. Justices who refuse to recuse themselves when the vast majority of the legal profession thinks they should are at risk of losing the respect of the profession and becoming pariahs.

I do think that there are powerful reasons to televise oral arguments. It's not just a matter of educating law students, but educating the rest of the American public (and the rest of the world) about the nature, role, and importance of legal argument. I just don't think that the "showboating" problem is that big of a worry, and if the Justices pull a few punches during oral argument, then I'm all for it. The Justices are so insulated from public life that it would do them some good to see how the rest of the world views their behavior, and honestly, it would do them some good to watch themselves too. (I learned a great deal many years ago from having myself videotaped as a teaching assistant.)

Joe said...

I want them to provide at least audio of opinion announcements -- why should only those in the courtroom hear the announcements (including Scalia answering Breyer) in the death penalty case? A reporter noted the justices don't want that to happen since the opinion announcements are not official, but it's out there. has it eventually. And, why have justices provide opinion summaries at all if not for general knowledge? Finally, justices are repeatedly asked about oral arguments being televised, but never hear about opinion announcements being asked about. Unlike oral arguments, their is no official transcript of them.

Unknown said...

Since the current state of the court is no cameras, I think it is fair to say the onus is on camera Advocates to show a need to change the current situation and not on the court to defend the current situation.

In re Brown, Roe, Citizens United, or any other oral argument before the court, since the audio is already made available, what would a video component add? Argument is not compelling because one looks, gestures, or dresses a certain way but by the soundness of its logic. If the intent is to demonstrate how One conducts Oneself before the court, I think its safe to presume other means of doing so are already available and are adequate.

Lastly, if this issue really is not about fixing problems, it sounds like the goal behind having cameras in the courtroom is just to have cameras in the courtroom, which is as unconvincing a rationale as "maintaining tradition for the sake of maintaining tradition" was in the early marriage equality cases.

Joe said...

The value beyond audio might be somewhat limited but as to what is happening "now," now the general public and the press/bar on greater basis are allowed to see the Court too. Public trials, including simply proceedings of courts, are seen and heard. Seeing adds something that hearing does not. Visual seems to be deemed valuable, so it to me would make sense to provide it widely by use of camera feeds. It is already available in some courts, including for the Canadian Supreme Court:

To me, one thing this does is provide broad openness that in some fashion promotes trust and understanding. C-SPAN is not just radio, even when merely providing book chats with Brian Lamb. Visual, even in respect to appellate argument, adds something. Also, visuals are already provided to a favored few. It would be egalitarian to broadly provide it.

Unknown said...

@Unknown: I detect a contradiction in your remarks. On the one hand, you say that the rationale of maintaining tradition for the sake of maintaining tradition is unconvincing. On the other, you say that if the status quo is that there are no cameras then the onus is on camera advocates. But if the rationale of maintaining tradition for its own sake is unconvincing, then why should we maintain the tradition of banning cameras just for the sake of maintaining that tradition? I guess I'm not following you. Moreover, Eric's post clearly states reasons relating to the importance of government transparency for admitting cameras into the courtroom. And several comments on this thread have mentioned other reasons to bring the cameras in, which include reasons for thinking that audio is insufficient. If you think those reasons aren't good, it would be nice to know why.

Unknown said...

Professor Segall -- I'm not trying to be funny considering the program's topic, but as the program sounds very interesting, I wish it had been video recorded for internet viewing.

Unknown said...

@Samuel Rickless:

An argument of “We have never had cameras in the court and, therefore, never should have cameras in the court” would be quite problematic, which is why I did not make such an argument. I do, however, say if We are going to change something We must have a reason for doing so and, unless doing something is inherently good, One should be able to articulate a resultant good and be able to show why that resultant good necessitates the particular proposed change.

Prof. Segall, however, has not articulated any specific need for increased transparency which only video footage can fulfill. Prof. Segall effectively concedes the lack of any problem in need of addressing in His comment which begins “It is not an issue of ‘fixing problems’“ and appears to focus on assisting Students to better understand the court. While further educational understanding can be a good thing, it’s not clear how the introduction of cameras with the resultant potential concerns about privacy (especially where Children are involved) and “camera conscious” Justices are the best vehicle for advancing the understanding. Are the law schools not able to teach unless Students can be shown video footage of the court? Are the transcripts and audio recordings somehow lacking in a particular way which only video can address?