In today's Washington which is plagued by partisanship, volatility, and high tension which grinds the wheels of governing to a near standstill, the Supreme Court seems to be the only branch of government working effectively. Their ratings in polls among American voters remain high while Congressional favorability continues to nose dive. Despite this public display of affection, the Supreme Court is, by far, the most secretive and closed door society of the three federal branches. The justices experience greater privacy in public and private life than members of the legislative or the executive who are constantly under a microscope. Many note the sizable press corp that follows the president but there is no such equivalent following for the nine justices. On Friday, five bright minds in the legal field gathered at the National Press Club to discuss this very topic of transparency in the Supreme Court.
The five panelists consisted of Judge Ken Starr, president of Baylor University and former solicitor general, Chief Justice Maureen O'Connor of the Supreme Court of Ohio, Neal Katyal, Hogan Lovell's partner, Georgetown Law professor and former acting solicitor general, Alan Morrison, the George Washington Law associate dean, and Pete Williams, the NBC News Justice Correspondent. The discussion was moderated by Tony Mauro, Supreme Court correspondent for the National Law Journal.
The panel turned their attention to a key question in today's ever evolving world of technology: should television cameras be allowed in the Supreme Court during oral arguments? For many of the panelists, the issue was about education. Chief Justice O'Connor noted that one of the reasons given by the Court for not allowing cameras is that the public would not understand what is going on. In her opinion, this seems to be an elitist view and not a valid argument. She believes Americans have a civic duty to enlighten themselves. Pete Williams referred to Justice Scalia's argument against cameras - no one would even watch the hour oral arguments, so why televise them? The irony in his statement is in his recent candid interview with New York Magazine, he stated that he writes his decisions for law students which is along the same lines of greater educational access.
The panelists also examined the possibility of "grandstanding" which the justices have used as a reason on several occasions. Each panel member believed that this is a total non-factor and in fact, Chief Justice O'Connor stated she had only witnessed one instance of grandstanding in the many years Ohio has televised arguments. Some of the justices, Breyer to name one, believed that they themselves could be guilty of grandstanding and might watch what they say during arguments as to not be overly scrutinized in mainstream media.
A potential solution to the television camera dilemma is Congressional
intervention. Mr. Morrison stated this is a separation of powers issue
despite the fact that the Supreme Court has told Congress and the president
they cannot do certain things. Neil Katyal stated Congress could pass a
resolution forcing the Court to allow cameras during oral arguments
while Judge Starr dismissed the separation of powers issue. Starr
referred to former Chief Justice John Marshall who stated that the court must
and will obey the law.
Recusal is another subject in which many desire more transparency. Should the justices provide a reason for their recusal? Alan Morrison proposes a bold scheme for future recusals: a buddy system. He suggested each justice have a "buddy," preferably on the other side of the ideological isle, that they can confide in when pondering potential recusals from cases. Morrison stated this would be a more collective effort than just simply recusing oneself from a case independently. Judge Starr stated each justice should participate in every case because the Court was designed to be odd numbered. He did note, however, that Justice Elena Kagan has appropriately recused herself on cases involving her previous role as solicitor general.
Despite the secrecy and the nature of the Supreme Court, Mr. Katyal pointed to the decision process as the most transparent aspect in all of government because the justices are able to explain the reasons behind their rulings. Decisions aside, the Court is a very secret society. Some simply ask for audio from oral arguments to either be streamed or even released after they take place. Mr. Morrison suggested radio as a solution to grandstanding and access. As Chief Justice O'Connor noted, in the last two years there have been monumental rulings which have affected the lives of millions of people. The public has a right to view arguments which may impact their lives in the name of education, transparency, and public servitude because the justices are not above anyone else in government and are celebrities whether they like it or not.