If the Supreme Court’s “live” audio hearings this month have done nothing else, they have definitely revived the debate over the issue of the Court’s transparency – that is, its openness (or lack of openness) to public examination as it does its work.
Having once allowed itself to be observed directly (even if only the sound, not the video), the Court – probably unwittingly – has stirred up insistent claims that it cannot go back to its old ways when it returns to the bench, probably next fall. The old ways, of course, were never to be broadcast in any of its decision-making processes, whether by audio or by video.
At the outset, it is important to note that, although the Court is strongly inclined to follow its own precedents, this episode was not the kind of precedent that commands imitation. This was a procedural switch, not an interpretation of the Constitution or any law or prior ruling. The Court, like the other two branches of the national government, has wide discretion to define its own operating processes and it used that discretion in this instance.
And, as will be noted later, the Court in creating actual constitutional precedents has never recognized a First Amendment right to broadcast any court proceeding. The Sixth Amendment guarantees a right to a “public” trial, and that has implications for public and press access, but the Sixth Amendment right belongs to the accused. The Free Press Clause of the First Amendment applies to TV only in a diluted form.
Some judges have ruled, in fact, that the rights of the accused may require that broadcasting be barred – an example came with the trial of Timothy McVeigh in the Oklahoma City bombing case in 1997.
Sooner or later, then, any periodic revival of the issue of judicial transparency will feature a debate over competing constitutional interests, the virtue of open government so that the people may be informed, and the capacity (or incapacity) of the media to prevent a respectable exhibit rather than a circus.
That debate is happening again, in the wake of the Supreme Court’s audio hearings. (It is, so far at least, not appropriate to describe that experience as a “trial run.” No one outside of the Court has any idea whether the Justices thought of it as a “trial run,” nor where the experience might lead the Court in the future. There is at least a chance that nothing at all will change – as happened many times before.)
Let’s set the scene for this version of the debate.
Working its way through an otherwise normal term, the Court encountered – as the nation as a whole did – the virus pandemic. Should it close down, or keep going?
With public health at stake, the Court had at least these choices: (1) put off all of the remaining hearings until the next term; (2) go ahead and decide those cases without hearings, based solely on the written filings; (3) meet somewhere else than in Washington, D.C. (a virus hot-spot) in a properly-decontaminated setting so that hearings could go on by approximately the usual process and by the usual rules; or (4) set up some way for the hearings to go ahead, but with the Justices at home, not in the courtroom, and communicating only remotely, by phone.
It chose option 4, without explaining why that option.
Regarding option 1: It would not have crowded the fall calendar much to put those cases over (as it did with some others). At most, only two of the cases (one involving President Trump’s privacy in his financial records and the other involving how the Electoral College is to function in electing the president) seemed to be time-sensitive. However, it now appears quite likely that both of those cases, when decided, will be returned to lower courts for more work anyway, and in that event would not be settled before election day. No real problem with option 1, then.
Regarding option 2: It would not have been difficult, unheard-of or even strange to decide the cases without hearings. Lawyers file full and totally adequate briefs in cases that the Court agrees to decide, so hearings are not absolutely necessary, even if traditional and desirable and perhaps often helpful. A handful of cases each year, ones that the Court considers easy to decide, are resolved without even full briefing and with no hearing. Not much of a problem with option 2, then.
Regarding option 3: This is the one that very likely would have caused significant difficulty. To set up elsewhere would have required a lot of logistical changes, including requiring lawyers to travel on commercial airlines at potential risks to their health even if the Justices could have been transported in a fully safe way. And it might have looked a little awkward for the Justices to be moving about the country in military aircraft supplied by the Pentagon or in Air Force One on loan from the President.
Putting aside those three, the Court went forward with the fourth option. It is not known for sure, but it is fair guess that the Court did understand that opening itself to broadcast, of any kind, would have exactly the effect that it actually has had: increasing pressure on it to become more open, more transparent.
The broadcasts that occurred did have quite a few flaws (as the writer of this blog rather notoriously has suggested previously), but the six days of hearings did sound quite a bit like a multi-member court at work. (Recently, several legal scholars have been applying their expertise to assess the experience, and the Court won’t be pleased with at least some of those findings.)
The audio hearings surely did lead quite a few people to be grateful for a good lesson in civics, and perhaps a chance to break the no-broadcast pattern that had been observed without change by the Court for so many decades when the technology was available. (The world was introduced to the prospect of radio in 1895, after Guglielmo Marconi first transmitted a signal in Italy; the idea never caught on at the Court – until this month.)
During and after the audio broadcasts, the word passed – especially among long-time “open government” advocates – that the time had come for the Supreme Court to become truly open, to admit the TV cameras and let America see for itself the making of justice: real-life judges on the bench in that magnificent chamber, together having a genuine public conversation, with lawyers visibly struggling (or not) to keep up, and about 200 spectators with prized seats in the chamber actually witnessing the show.
What arguments might be mounted to support demands like that?
There are, in fact, some prior Supreme Court rulings – true precedents – that are often cited in support of judicial transparency:
* A 1947 decision, Craig v. Harney, hinted that court proceedings were supposed to be open to public scrutiny. There, the Court overturned criminal contempt-of-court convictions of three Texas journalists for public remarks critical of a local judge.
* A 1980 decision, Richmond Newspapers v. Virginia, declared that criminal court trials must generally be open to the public, under the First Amendment, and that the press has as much right as the general public to attend and observe such trials.
* A 1981 decision, Chandler v. Florida (the strongest of these precedents in this regard), told the states that they were free constitutionally to permit the radio or TV broadcast of criminal court trials. That, the Court said, did not intrude upon the rights of the suspects on trial. This was a ruling allowing states to choose to broadcast; it did not command them to do so.
Notably, the Court’s major prior precedents each involved a trial, not to a hearing in an appeals court. The Supreme Court has yet to rule, explicitly, that the Constitution demands that higher courts have to be open to the public or open for broadcast.
Advocates of a televised Supreme Court have a number of allies in Congress, willing every year to introduce bills that would attempt to force the issue. Chances are, though, that any such bill would contradict the constitutional separation of powers.
If the precedents have not opened up the Supreme Court to TV and radio, and if Congress may lack the authority to make that happen, the transparency discussion necessarily turns to other rationales.
Are those others persuasive?
At least one can be dismissed rather easily: it is a simplistic syllogism. These are its steps: the Court is a public institution; its operations are funded by taxpayer dollars; ergo: the public has a right to watch it work. That argument doesn’t work very well, in general or in the particular: there is much government activity that never sees the light of day, and all of it is financed by the taxpayers. How often are Cabinet meetings on TV? Congressional caucus meetings? At least the Supreme Court invites the public into its chamber, and is as closely covered by the press as any other government institution.
Another rationale is a somewhat more respectful version of that one: that is, the Court is doing such profoundly important things that the public ought to be able directly to witness how the judicial machinery works. That is the best argument from the perspective of civic education.
But that, too, apparently has limits: few, if any proponents of openness actually want public exposure of the real decision-making process that comes after the hearings, when drafts of opinions are prepared and circulated and discussed (the drafts only become publicly available, haphazardly, years later when a Justice’s papers are opened up).
Another argument (at least for televised hearings and decision-announcement days) is that TV technology has advanced to the point that the cameras will be truly inconspicuous and thus totally unobtrusive. Sooner rather than later, this contention goes, the Justices will not even know that they are on camera, and so the chance of acting differently will diminish or even vanish. Lawyers, too, will get used to being on TV. Judges and lawyers in many state courts and even some federal courts already handle broadcasting very well, indeed, it is said.
The problem with most of the rationales is a simple one: lecturing the Court on its civic duty is, if not a fool’s errand, at least an unpromising tactic. In the minds of most of the Justices in modern times has been a stubborn little voice, saying that there are so many imponderables about what will happen to dignity and decorum and human behavior that – well, why take the risk?
Now, though, the Court – at last – has appeared on “live” TV, and at least could be heard. If not intended as a “trial run,” that did bring a hesitant dipping of the judicial toe into the hot medium of TV.
Perhaps (maybe only a long shot) nine Justices will now have a conversation about what has just happened, how it went, and what it might mean for the future.
Would it be good for civic education if such a conversation were to be televised? It almost certainly won’t be; the public for now is left merely to wonder.