Barrett’s speech, at the McConnell Center at the University of Louisville, took place in front of an invitation-only crowd at an event with limited media, no recordings for broadcast, and no warning to the Supreme Court press corps .
His Conservative colleague, Justice Clarence Thomas, also lambasted the media days later in a speech at the University of Notre Dame. Again, there was no live broadcast of his remarks to the public, although at least one video is now available.
If media coverage and perception of the court is a real problem, the best solution may not be to keep people away from the judges’ own words.
In 2014, Barrett’s former boss, Judge Antonin Scalia, quoted James Madison in a speech on civic education: “A popular government without popular information, or at least the means to acquire it, is only a prologue to a farce or a tragedy; or maybe both.
We’re off to a joke. According to the University of Pennsylvania’s annual Annenberg Civics Knowledge Survey, more than half of respondents mistakenly believe that Facebook is obligated to allow all Americans free speech under the First Amendment. (Reminder: the First Amendment prohibits such censorship by the government, not social media.)
There is clearly a lack of knowledge among the public about our laws and the work of the Supreme Court in interpreting them. A problem, of course, but also an opportunity. Instead of blaming the media for failing to bridge the gap between the court and compatriots, the judges themselves should do more to shed light on their approach. Who better than its members to educate the people on the functioning of the Court?
Here are three steps the Supreme Court can take now that would go a long way in strengthening its credibility with the American people.
Allow cameras in the courtroom
The court recently announced that it would take the seat in person next month for the first time since the start of the pandemic, but the public is not allowed in due to public health reasons. Some journalists will have access to it, but only those with a full-time press card issued by the Court’s Public Information Office. While the court will continue to live stream audio of the pleadings, people will not be able to watch the court do its job, including debating a host of controversial issues like the future of Roe vs. Wade and the second amendment.
Oral argument is the only opportunity to observe the deliberative process of the tribunal. A live video broadcast would be a ready-made civic education lesson in court procedures and how judges consider an issue before them. With cameras in the courtroom, not only would the public be able to observe – and learn – in real time, but it would allow judges to essentially speak directly to the people rather than relying on the media as intermediaries.
Unveiling the shadow file
Lately, not all important decisions have oral argument. An increasing number of substantive decisions are coming in the middle of the night via the “shadow case” via an unsigned, groundbreaking one-paragraph ordinance, as was the case with abortion rights in Texas.
If the court finally decides Roe vs. Wade entirely next spring, after hearing oral argument in November, the practical effect of that ruling would be largely the same for pregnant women in Texas at this time. Clinics would turn people away and many would likely close. But, presumably, the court’s decision would accompany a long written explanation and a list of the majority judges. The decision would reflect, if not reveal, the deliberative process of the tribunal.
When judges hear a case on their regular role, it marine. Counsel for both parties file several briefs explaining their positions and responding to the arguments of the other party. Third parties file amicus files in support, sometimes dozens. Each party gets at least 30 minutes of oral argument before the nine. Judges have time to think deeply about their decision, to write detailed opinions that guide not only the parties but the courts below, and are sometimes called upon to modify their votes. It’s a long process that takes months.
Shadow case decisions take days, if not hours. The public has virtually no window into the tribunal’s decision-making process. It is also not necessary to explain the decision or even say which judges made it. The phantom file often works this way because the emergency relief requested justifies the pace. But the public would benefit from more transparency about how the tribunal comes to these decisions and who signs them. The court communicating more information directly to the public means less interpretation by the press that “gives the impression that decisions are outcome-oriented,” as Barrett put it.
Keep us posted
The fact that Barrett’s speech took place without notification to the appointed Supreme Court press corps is not unusual. It often happens that judges appear in public without notice. In addition, no recording was allowed. Also, not unusual.
That should change and judges should promote the heck of their appearances. These events are an opportunity to educate, enlighten and build public confidence in the institution of the court, and this learning moment is lost when people are excluded. Why not invite us all to learn in the Louisville classroom?
This week, Judge Stephen Breyer told the Washington Post: “I saw how long it took to gain the confidence of the American people enough to follow – and almost automatically – what the court said. . It’s true. The court does not have the power to execute its decisions. He relies on the American people to obey the rule of law. But this trust has to go both ways. The court must trust the American people to see more, hear more, and understand more about the deliberative process of the court.
These changes would not only allay judges’ concerns about the media’s presentation of the court. This would advance the Madisonian principle that giving the American people information, or at least the means to acquire it, ensures the continuation of our democratic experiment.