The nation’s highest court shouldn’t keep secrets

Over the next few months, the Supreme Court will hand down important decisions on the validity of same-sex marriage bans, the use of secret cocktails to execute convicted murderers, and a number of other important social, economic, and legal issues including, of course, Obamacare. There can be no denying the major impact these decisions will have on the American people. Yet we continue to allow the court to operate less openly than almost any other government institution.

When the court announces the same-sex marriage decision in June, the only people who will ever get to see that landmark civil rights moment will be the approximately 250 folks lucky enough to be in the courtroom. The court’s refusal to televise, videotape or even live stream its public hearings has been written about and criticized so extensively that only three quick points need to be emphasized.

1. Other countries allow cameras. Over half the states as well as the Supreme Courts of Canada, the United Kingdom, and numerous other countries now allow cameras in their courtrooms and with great success. The Chief Justice of the Ohio Supreme Court, for example, has spoken out about the many civic benefits of cameras in her courtroom.
2. We have the technology. A governmental hearing that is already open to the public should be made available to all who want to watch it. The normal presumption of transparency in government has been turned on its head by the justices without good cause.
3. History should be preserved. It is almost beyond belief that the court’s decision announcement days (where only the justices speak) are forever lost to history, scholars, and the American people simply because of the justices’ anachronistic insecurities about embracing technological change. Whatever concerns the justices have about lawyers showboating for the cameras or the effects of cameras on the questions and answers between the justices and the attorneys are completely inapplicable to those days when the justices simply announce their decisions.

The lack of cameras at the court, however, is only the first of many other ways the court shields itself unnecessarily from the American people. Professor Will Baude recently wrote in The New York Times about the “shadow docket” of the court, where the justices make important preliminary decisions about stays and emergency matters without stating any reasons or even disclosing which justices joined or didn’t join the opinions. These “preliminary” decisions over the last year have had important consequences for women seeking abortions, low-income citizens trying to vote, and gays and lesbians seeking equality. Such important matters shouldn’t be shrouded in secrecy and anonymity.

The justices also shield themselves from individual scrutiny when they cast their all-important votes on whether or not to grant writs of certiorari. Out of the approximately 7,500 cases each year that are appealed to them, the justices usually grant the writ in approximately 75. Unless a justice dissents from the denial of the writ — a rare occurrence — we never know which justices decided to hear which cases. This lack of transparency makes it impossible to hold the individual justices accountable over time for the decisions they make.

Even worse, there are almost no formal public rules about cert decisions (there are rumors of a secret handbook available only to justices and clerks). The principle that it takes four justices to hear a case is a common law rule that could be changed at any moment. This lack of formality and visibility throughout the entire process does not serve any purpose but does hide important voting patterns and shields individual responsibility.

The little we do know about the cert process, and most of what else goes on in the court, is gleaned by researchers from the official papers that some justices offer up to history. Here again, however, there are no formal rules and most justices seal their papers for lengthy periods of time. Chief Justice Burger’s papers are still not public (he retired in 1986) and Justice Souter has sealed his for fifty years. Justice Brennan allowed one journalist virtually exclusive access to his papers for almost twenty years. Those papers, however, were paid for by taxpayer dollars and concerned official matters. The U.S. president’s papers are subject to the Presidential Recording Act and a similar law should be passed by Congress for the Supreme Court.

I am not suggesting that all private pre-decisional communications between the justices or between the justices and their clerks must be disclosed immediately upon retirement or death, but some formal rules need to be put in place containing reasonable time frames and allowing for various privileges. That is the only way to stop substantial losses such as Justice White and his clerk shredding most of his Miranda file prior to his retirement.

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Tables turned: Supreme Court justices testify March 23, 2015 / 06:16

The court’s usual answer to most of these critiques is that it is the work of the institution, not the individual justices, that is important — and that their work is reflected in their final opinions. This argument is singularly unpersuasive. The justices as individuals are government employees who make important public decisions. We would not allow Congress to take a secret vote on bills because it is only the final result that matters. The fact that Supreme Court justices hold their offices for life makes it even more important that history can judge their careers accurately.

Any one of the court’s secret practices would be highly disturbing in a democracy committed to open government, but cumulatively they make the court perhaps our least transparent institution. If the justices do not come out of the shadows voluntarily, Congress should use its power of the purse under Article I of the Constitution to force much needed change. The mere threat, made seriously, might even be enough. 

Eric Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law and the author of “Supreme Myths: Why the Supreme is not a Court and its Justices are not Judges.”