Invisible Justices: How Our Highest Court Hides from the American People

• Publication year: 2016

Invisible Justices: How Our Highest Court Hides from the American People

Eric J. Segall

Georgia State University College of Law, esegall@gsu.edu

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INVISIBLE JUSTICES: HOW OUR HIGHEST COURT HIDES FROM THE AMERICAN PEOPLE

Eric J. Segall^*

Introduction

The Supreme Court of the United States is one of the least transparent governmental institutions in the United States. The Justices' reluctance to show themselves on camera has been debated and criticized at length but is only one small part of a more disturbing and consistent pattern of secrecy. The Court acts in mysterious ways across a broad range of official duties. This Article examines how the Court uses that secrecy to hide important aspects of its work from the American public. In addition to forbidding cameras in their courtroom,¹ the Justices follow different and less onerous ethical and professional rules than all other federal judges.² The Justices do not have to and almost never explain important recusal decisions even when a party has filed an official motion alleging that the Justice is

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biased or has an improper interest in the litigation.³ The Justices have no obligation to make their official, taxpayer-funded papers public after they leave office.⁴ The Justices do not even have to disclose their individual votes on whether to hear or not hear the very few cases they decide to accept to each year.⁵

The Justices, no doubt, need their independence to perform their jobs, but the Court as an institution does not have to remain a mythical and mysterious place shrouded in secrecy and removed from meaningful public inspection. There is a general presumption of transparency in our democracy that requires strong evidence of harm before the government is allowed to act in secret.⁶ This presumption, however, does not apply to our highest court to the shame of the Justices, the institution, and ultimately, our democracy.

I. Cameras

Going into the last week of June 2015, the Supreme Court of the United States was on the verge of handing down blockbuster cases on same-sex marriage and the Affordable Care Act.⁷ Millions of Americans waited anxiously for the Justices to interpret the Constitution and federal statutory law and answer fundamental

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questions about how we define ourselves as a country. No one (other than the Justices) knew on which specific days the Court would hand down these decisions (the Justices never inform the public in advance), but most everyone knew that the cases were forthcoming.

Over two dramatic June days, for many, the world changed. Justice Anthony Kennedy, a Ronald Reagan appointed Republican from California, announced that the Supreme Court had decided by a bitterly divided 5-4 vote that same-sex couples have a constitutional right to marry just like heterosexual couples.⁸ Thousands of Americans, gay and straight, wept for joy.⁹ Others, of course, believed the decision to be both a tragic mistake and a terrible usurpation of power by five Justices.¹⁰

The Supreme Court also announced that the attempt by a few diehard objectors to gut the Affordable Care Act would not succeed. By a vote of 6-3, the Court rejected the challengers' bizarre argument that federal health exchanges could not offer federal tax subsidies.¹¹ Millions of Americans would continue to be able to afford health insurance. During this same time period, the Court also handed down

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divided opinions on redistricting, the death penalty, and other important issues.¹²

No one but a few reporters and about 250 people saw the Court announce these decisions.¹³ C-Span offered to televise the proceeding so that those interested could gather around their televisions, tablets, and smart phones to observe history, but the Justices refused that request.¹⁴

There will never be any video or even photographic evidence of these historic cases. When law professors teach these cases to future generations of students, neither will be able to see how proud Justice Kennedy was to provide equal rights to gay Americans or how Justice Roberts turned away a politically inspired challenge to President Obama's signature legislation.¹⁵ Truly historic governmental business was transacted largely in private away from the American people.

There are compelling reasons to televise Supreme Court proceedings, both the oral arguments and the decision days, and few persuasive objections to keep them off the air. It is well past time the Supreme Court enters modern times and joins most of the states as well as the supreme courts of Canada, Brazil, and the United Kingdom, and allow live television coverage of its official business.¹⁶

A. The Arguments For and Against Cameras

The first argument in favor of cameras in the Supreme Court is a simple one: The oral arguments and decision days are already public events, C-Span is willing to televise them at its own expense, and there are obviously many Americans who want to witness the

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proceedings.¹⁷ We normally have a strong presumption that open government hearings will be, well, open. As Dean Erwin Chemerinsky has written: "Supreme Court proceedings, of course, are government events and there should be a strong presumption that people should be able to watch government proceedings. Arguments in the Supreme Court always have been open to the public, but relatively few can attend in person."¹⁸

In addition to the normal presumption of transparency, there are a myriad of cultural, educational, historical, and civic benefits to allowing cameras at the Supreme Court. The American people could watch lawyers and judges argue over our most controversial, divisive, and sometimes partisan issues, with mutual respect, civility, and deference. Especially in these overly partisan times, the oral arguments could set an example of how public officials can disagree, sometimes bitterly, without undue rancor.

Our national museums could display the Court's most important cases with the Justices on video arguing over the issues and announcing the results. Students in elementary and secondary schools, colleges, and law schools could gain better insight and understanding about the Court and great historical debates over race relations, abortion, gun control, and voting rights by actually seeing the Justices perform their duties. Perhaps most importantly, when the Court hands down landmark decisions like last term's same-sex marriage opinion, millions of Americans could gather together in a moment of national pride (or anguish) and political engagement which would be markedly different from hearing the news second hand from a few select journalists.

Balanced against all of those benefits are a few unpersuasive arguments the Justices routinely trot out against cameras in the Court. Perhaps the most famous statement made by a Justice opposing cameras was Justice David Souter's admonition that "the day you see a camera come into our courtroom, it's going to roll over my dead

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body."¹⁹ Souter explained that he was concerned that statements made during oral arguments could be taken out of context by the media and that the "judiciary is not a political institution . . . nor is it part of the entertainment industry."²⁰

Justice Souter's concern that cameras should not be allowed because the Court is not a "political institution" is particularly revealing. Although the political or legal nature of the Court's decision-making is beyond the scope of this paper, one does not have to be a core legal realist to appreciate that the Justices make fundamentally important decisions about many of our country's most controversial issues based largely on vague text, contested history, and precedents that can be interpreted in many different ways.²¹ Justice Souter's vehement opposition to cameras was probably based on his desire to maintain the Court's image as an apolitical font of law rather than a values laden (and at least somewhat if not mostly political) institution.

Other Justices have also expressed concern that the media might distort out-of-context snippets of Court proceedings if cameras were allowed in the Courtroom.²² For example, testifying in front of Congress on the Court's budget, Justice Stephen Breyer said, "If you see on television a person taking a picture of you and really mischaracterizing [what you say], the first time you see that, the next day you'll watch a lot more carefully what you say. Now that's what's worrying me."²³

Dean Chemerinsky once again has provided a persuasive response:

I have heard justices express concern that if television cameras were allowed, the media might broadcast excerpts that offer a misleading impression of arguments and the

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court. But that is true when any government proceeding is taped or even when reporters cover any event. A newspaper or television reporter could quote a justice's question or a lawyer's answer out of context. The Supreme Court should not be able to protect itself from misreporting any more than any other government institution can do so.

The justices might be afraid that an excerpt of oral arguments might be used for entertainment purposes; perhaps they will even be mocked. But that is a cost of being a democratic society and of holding a prominent position in government. In no other context would Supreme Court justices say that government officials can protect themselves from possible criticism by cutting off public access.²⁴

Some Justices have expressed fears that their fellow Justices, lawyers, or both may misbehave and grandstand if cameras were allowed in the Supreme Court.²⁵ For example, Justice Anthony Kennedy has said that with cameras there may be an "insidious temptation to think that one of my colleagues is trying to get a sound bite for the television" and that would "alter the way in which we hear our cases, the way in which we talk to each other, the way in which we use that precious hour."²⁶ How the Justices behave, however, is in their...