The President keeps an open record of everyone who visits the White House. Congress broadcasts its most sleep-inducing business over three different C-SPAN channels. The Supreme Court? They like a bit more privacy.
That privacy is earning the Court a fair amount of criticism as it gets ready to begin its new term. From the cardinal halls of Stanford Law to the pink mail boxes of Palm Beach, Florida, the Supreme Court is facing accusations that it is too secretive in its doings.
Let Us See the Decision Making
When a case comes before the Supreme Court, there is plenty of public information available about it. Cert petitions are online, as are all orders granting or denying review. Should the Court grant cert, almost all of all the parties' briefs and responses, and all the submissions by "friends of the court," are available to the public, through services like Westlaw and free websites like FindLaw and SCOTUSblog.
Anyone who wants to wait in line can attend oral arguments (though, famously, no cameras are allowed) and opinions are posted to the Internet just minutes after they are distributed by the Court. There's more information on Supreme Court decision making than the average person would ever want.
But we don't see the sausage get made. That's a major problem, according to Stanford Law professor Jeffrey Fisher. In a recent op-ed, Fisher argues that the court must open its decision making process to public scrutiny when it comes to deciding what appeals to hear. It takes four Justices to grant cert, but how each Justice votes in response to a petition is secret. "The justices should lift the veil of secrecy that shrouds this power," Fisher writes.
There's no better place to start than with the Court's brutal long conference, this Monday. The Court could follow many other appellate courts and "simply announce the vote tallies," Fisher argues. No explanations for the votes are needed, but greater transparency in voting would be "instructive" to practitioners and invite further communication between the Court and the public.
Criticism From All Corners
Professor Fisher isn't the only one arguing that the Court needs to change its ways and become more transparent. Lawyers, journalists, and SCOTUS nerds have long been asking for greater access to Court proceedings, particularly for cameras in the Court. Stephen Colbert recently ribbed Justice Breyer over the non-camera policy, for example.
Residents in Palm Beach, Florida were recently exposed to some of the more common Supreme Court critiques, though in a fairly unorthodox way. Fix the Court, an advocacy organization headed by a political consultant and former T.V. producer, sent out mailers to Palm Beach residents depicting Chief Justice Roberts sitting on the sand, his black robe open to expose bare legs and cargo shorts.
The gripe? The Justices like vacation too much! The mailers call the Court "the most powerful, least accountable" government institution. It demands that the Supreme Court bring in cameras, end summers off, and institute term limits. Not unheard of demands, though Fix the Court's website also criticizes the Supreme Court for "the principle of judicial review" itself. So, you know, it's maybe not the most mainstream.
Will the Court adopt term limits? Abandon judicial review? They shouldn't and they probably never will. But, publicly disclosing how cert petitions are decided would certainly be a nice change.