Sua Sponte

• Author: Hon. Bridget Mccormack
• Pages: 19-21

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 19

The author is chief justice of the Michigan Supreme Court, and an associate

editor of Litigation.

SUA SPONTE

A Judge Comments

HON. BRIDGET MCCORMACK

This past term, the U.S. Supreme Court conducted its first-ever re-

mote oral argument. Audio of the argument was also broadcast in

real time, something the Court had never done. The Court usually

releases recordings publicly at the end of each argument week.

While the pandemic-induced broadcast was well received, it

also drew attention to the Court’s long-standing policy of pro-

hibiting cameras in the courtroom—a policy that the Court con-

tinued to follow, in spirit at least, with its telephone-only argu-

ment. Maybe live audio broadcasts will continue once the Court

resumes in-person arguments, but for now it seems unlikely that

the Court will revise its policy against cameras.

That is too bad. Public trust is the currency of government,

and the judiciary is no exception. Access to judicial proceed-

ings helps maintain that trust. Allowing the public to observe

how courts operate both fosters a sense of accountability in our

judicial system and helps demystify processes that may seem

impenetrable or arcane to non-attorneys.

The Supreme Court has even recognized a right of public ac-

cess to court proceedings, albeit a limited right. As Chief Justice

Burger wrote in Richmond Newspapers, Inc. v. Virginia, “[t]he right

to attend criminal trials is implicit in the guarantees of the First

Amendment; without the freedom to attend such trials, which

people have exercised for centuries, important aspects of freedom

of speech and of the press could be eviscerated.”

But, of course, the number of people who can attend oral ar-

guments before the Court is very small. Typically, only 50 seats

are reserved for the general public.

Supporters of the Court’s no-cameras policy have long ar-

gued that the presence of cameras would change the behavior

of justices and advocates, and not for the better. That has not

been our experience in Michigan, where since 1989 appellate

courts have operated under rules that presumptively favor the

allowance of film or electronic media coverage of proceedings.

Even more recently, our state supreme court has broadcast live

video of oral arguments and other public hearings. And we are

not unique. Even before the COVID-19 pandemic, a majority of

state supreme courts successfully used video livestreaming to

make their proceedings more accessible and transparent.

Currently, court systems around the country are going through

rapid, pandemic-induced changes. At the appellate level, the

opinions in which they provide reasons for their decisions. As

Justice Anthony Kennedy once explained to a subcommittee of

the House of Representatives Appropriations Committee, the

justices are judged by what they write. In addition, appellate

court judges review the opinions of lower court judges, and the

legal community offers critiques of judicial opinions.

Even if most members of the public do not read judicial opin-

ions, they are likely to read accounts of them in newspapers or

online. Thus, the real work of the federal judiciary—its proceed-

ings and the bases for its decisions—is open to, and scrutinized by,

judges, lawyers, law professors, the press, and the public.

Federal judges also teach the public about the work they do by

writing articles and books, giving speeches, conducting seminars,

meeting with visitors, and even making appearances on popular

television shows. The U.S. Supreme Court justices meet with vis-

iting dignitaries, foreign judges, and schoolchildren, and answer

their questions. They give lectures, speeches, or talks at law schools

and write articles for law reviews. To reach younger audiences,

they even make appearances on Sesame Street (Justice Sotomayor)

and The Colbert Report (Justice Stevens after he retired).

The bench and bar invite the justices to offer remarks at their

meetings, conferences, and awards ceremonies. The chief justice

serves as the public face of the Supreme Court. He performs

numerous public functions, from presiding over oral argument

at the Supreme Court to administering the oath of office to the

president on Inauguration Day.

The Court also performs public outreach by maintaining

a website so that lawyers, the press, and the public have easy

(Continued on page 21)

Illustration by D oug Thompson