The Washington Post

At Supreme Court, tradition trumps technology, and transparency

People crowd the Appeals Court Chamber to watch on a television as the New Mexico Supreme Court hears arguments for and against same-sex marriage, in Santa Fe, N.M. on Oct. 23. The Supreme Court did not issue an immediate ruling in the case. (Eddie Moore/AP)

Anyone with an Internet connection last week could have watched the justices probe and ponder and question whether the constitution contains a fundamental right for same-sex couples to marry.

Now, there were only five justices, they happened to be sitting in their courtroom in Santa Fe and the constitution in question belongs to the state of New Mexico.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

But, like their fellow state supreme court justices across the country, where live coverage of such sessions is the norm, they managed to get through it without a jurist pandering and pontificating or a lawyer showboating or anyone waving at the camera.

Truth be told, the televised New Mexico hearing at times was a bit legalistic and dull, just like the oral arguments that take place at the U.S. Supreme Court, which may never be televised.

Cameras at the Supreme Court is hardly a new topic, but it got a spirited rehashing last week at an event called “Today’s Supreme Court: Tradition v. Technology and Transparency.” Given that it was sponsored by the Reporters Committee for Freedom of the Press, one need not be clairvoyant to guess how the panelists came out.

But Tony Mauro, the National Law Journal correspondent who has covered the court for 33 years, said barring cameras is not the only example of tradition trumping new technology.

Some courts live-stream audio of their arguments; except for rare occasions, the U.S. Supreme Court releases audio of its oral arguments at the end of the week (although transcripts are released within hours of the argument). Recordings of the bench announcements of court decisions aren’t available until the next term begins months later.

Financial disclosure forms for most public officials are available online. Those of the justices must be obtained from the Administrative Office of the U.S. Courts “on paper, for a fee, and only after the justices have been told who’s asking for them,” Mauro said.

Petitions to the court and amicus briefs in cases are not on the court’s Web site; private entities such as the American Bar Association and the unaffiliated SCOTUSblog fill the gap.

The justices provide no reason when they recuse themselves from cases. Their public schedules are not routinely distributed.

“News of their whereabouts and their health is very hit-and-miss,” Mauro said, “and dependent on how much or how little information the justices want to release.”

All of this underscores a gap between the public’s perception of the court as opaque and mysterious — as someone who covers the court, I’m often asked whether I’m “allowed to ever meet the justices” — and the justices’ views that they are the most transparent of government institutions.

To them, it’s the product that matters. They are fond of saying that all the information on which they base their monumental decisions is public record available to all who want to study it.

Alone among public officials, they must give detailed explanations for their decisions — each of the nine signs on to the majority opinion that provides the legal justifications for the ruling or issues a dissent with competing reasoning.

Their reasons for excluding cameras are well documented: They fear grandstanding by lawyers or a loss of decorum or simply a reluctance to change a procedure they think is working.

Justice Ruth Bader Ginsburg has said that oral arguments are really a very small part of the process, that the real work in the case comes from the briefs that provide the detailed legal arguments. She said she fears televising the arguments would give the impression that the side with the most articulate lawyer should win.

Justice Antonin Scalia has objected to the idea that only “snippets” of the hearings would be shown. Justice Stephen G. Breyer said at a congressional hearing that it wasn’t the lawyers he was worried about so much as himself and his fellow justices — seeing themselves on the evening news could lead them to alter the way they ask questions.

And the court’s newest justices have fallen into line. Sonia Sotomayor and Elena Kagan expressed enthusiasm for cameras in the courtroom during confirmation hearings. Both have now had a change of heart.

The panelists had answers for all. Pete Williams of NBC noted that the “snippets” Scalia fears are called “quotations” when used in newspaper stories. That practice has been around for a long time. What the justices really fear is not the evening news, Williams said, but late-night comedians.

Maureen O’Connor, chief justice of the Ohio Supreme Court, said grandstanding by lawyers is nonexistent during the televised hearings of her court. She remembered only one occasion when an advocate addressed “the audience” beyond the courtroom’s walls. He was quickly whistled back into line with the comment that the only audience that mattered were the justices in front of him.

On the whole, it was a respectful bunch that was calling on the Supreme Court to change. Former acting solicitor general Neal Katyal, a Washington lawyer who now argues frequently before the court, called it a “temple for truth” and said he wouldn’t presume to tell the justices what to do.

Ken Starr, another former solicitor general and judge who has argued before the court 36 times but is better known as President Bill Clinton’s prosecutor, called the court “awe-inspiring.” Now president of Baylor University, Starr compared the court to Congress and seemed to take a shot at Republican Ted Cruz, his home-state U.S. senator, who interrupted his recent not-quite-a-filibuster over defunding the health-care law to read his children watching at home a bedtime story.

The justices are “professionals doing very professional work — they’re not sitting there reading ‘Green Eggs and Ham,’ ” Starr said.

Alan Morrison, a George Washington University law professor and public-interest lawyer, had an incrementalist idea for bringing the court into the, well, 20th century: radio. The court’s proceedings already are piped live into the lawyer’s lounge at the court, he said. Why not simply send the audio out to everyone?

Starr seemed to be trying to recruit an influential ally to his cause: retired justice Sandra Day O’Connor.

He noted that O’Connor, who also opposed cameras in the courtroom during her tenure, has undertaken a massive project to improve civic education in the country. Access to the court’s deliberations could only increase the public’s knowledge of the court, Starr said.

The country’s first female justice, Starr noted, has spoken of the pride she feels when she sits in the courtroom and sees three women emerge from behind the velvet curtains to take their places on the bench.

“Wouldn’t it be wonderful for us all to be able to see that?” Starr asked.

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