Supreme Court's Obsession With Secrecy

       Supreme Court Justice Antonin Scalia was apparently in full Scaliaesque mode when he spoke to the Georgia State Bar this month [March 14] on constitutional originalism. Scalia “ranted and ranted” that the Constitution grants no right to abortion or same-sex marriage, according to one of those in the audience. News accounts quoted Scalia as describing the idea of a “living Constitution” as “idiocy.”
       These days, many people interested in the issue might reflexively log on to You Tube to look for a video of Scalia’s remarks. But don’t bother. In accepting the speaking invitation, Scalia imposed his customary ground rule: no cameras, no tape recording. So you’ll just have to rely on the brief news coverage of the speech or on second-hand accounts like the sharp critique delivered by Eric Segall, a law professor at Georgia State University in Atlanta who helped organize the event.
       Scalia’s ground rule is one of a dozen or so Supreme Court practices that severely limit information for the public about the nation’s highest court and the nine life-tenured justices who serve on it. As Dahlia Lithwick, Supreme Court correspondent for Slate puts it, the court is “completely unknown and unknowable to 99 percent of the public.”
       Lithwick and Segall were among the participants in an hour-long indictment of the court’s obsession with secrecy held last week [March 21] at New York University’s Washington Center. The event was cosponsored by the Reporters Committee for Freedom of the Press and the newly organized Coalition for Court Transparency, an amalgam of press organizations and legal advocacy groups.
       The program came against the backdrop of a renewed push to get the justices to let cameras into the courtroom for Supreme Court arguments. That issue has been percolating for at least 30 years, with no sign the court is likely to change its mind. To the contrary, the only minds being changed are those of new justices, including Sonia Sotomayor and Elena Kagan. Both were open to the idea during their confirmation hearings but have been voicing doubts since joining the court.
       The court’s obsession with secrecy, however, goes much further. As one inexplicable example, most of the justices do not announce their speaking schedules or release the text of public speeches. Justice Anthony M. Kennedy was the keynote speaker at the American Bar Association’s annual convention in August, but you won’t find the text on the Supreme Court web site under “Speeches.”
       Segall finds it similarly inexplicable that the court does not announce the votes of the justices when it decides whether to review a case from a lower court. It takes four votes to grant certiorari, but the votes in individual cases are disclosed only in the handful of cases each year when one or more of the justices issue a public dissent from the court’s refusal to take up a case.
       The justices are just as opaque in regard to recusals. None of the justices issues an explanation when he or she steps aside in a case. The public is left to guess whether the reason is some financial interest, a familial conflict, or something else. And any efforts to look for financial conflicts in the justices’ financial disclosure forms collides with the limited accessibility of the forms, which are available only in person in Washington, not on line.
       The court is somewhat proud of its web site, relaunched with various improvements a couple of years ago. But there’s not that much to brag about. Decisions are now available on line almost as soon as they are announced, and argument transcripts are posted within hours. But, despite the recent requirement for petitions and briefs to be filed electronically, these are not automatically posted on the court’s web site itself. The best sources for briefs at the Supreme Court are private entities: the ABA and the utterly invaluable SCOTUSblog.
       William Jay, a lawyer and an ex-Scalia clerk, noted one practice that only Supreme Court advocates would notice: the justices’ occasional research outside the record in the case. Jay noted that when the court outlawed the death penalty for juvenile offenders, Kennedy cited in his majority opinion data gathered after briefing and arguments were completed. The parties had no notice of the extra-record research and, obviously, no opportunity to comment.
       Of all the various issues, the question of cameras in the courtroom is easiest to raise in public. High courts in other nations allow video coverage — for example, Brazil, Canada, and the United Kingdom — with no apparent adverse effect. Justices have long warned of the risk of “showboating” by lawyers, but Sonja West, a law professor at the University of Georgia, notes that they are now raising a paternalistic fear that the public simply would not understand what was going on.
       A court answerable to the public could not get away with so many violations of transparency or such attitudes. Segall proposes a radical step to get the court’s attention. He wants Congress to refuse to fund the court until the justices improve their information practices. Congress is unlikely to go that far, so any major changes are likely to have to wait until a generation of post-Internet justices accustomed to instant transparency move into the Marble Palace at One First Street.