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Justice Amy Coney Barrett put on her media critic hat this week, complaining that coverage of the Supreme Court fails to capture the justices’ deliberative process.
She’s right. But how could it?
We know about Barrett’s comments, including her lament about “hot takes on Twitter” and the notion that the justices are seen as “a bunch of partisan hacks,” only because of an enterprising reporter at the Louisville Courier Journal.
Barrett’s speech, at the McConnell Center at the University of Louisville, was before an invite-only crowd at an event with limited media, no recording for dissemination and no heads-up to the Supreme Court press corps.
Her fellow conservative, Justice Clarence Thomas, similarly blasted the media a few days later in a speech at the University of Notre Dame. Once again, there was no livestream of his remarks for the public, though at least there is now video available.
If media coverage and the perception of the court is a real issue, the best solution can’t be keeping people away from the justices’ own remarks.
In 2014, Barrett’s former boss, Justice Antonin Scalia, quoted James Madison in a speech on civic education: “A popular Government without popular information, or at least the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
We are well on our way to a farce. According to the University of Pennsylvania’s annual Annenberg Civics Knowledge Survey, more than half of the participants incorrectly believe Facebook is required to allow all Americans freedom of expression under the First Amendment. (Reminder: The First Amendment prohibits such censorship by the government, not social networks.)
There is clearly a knowledge void among the populace about our laws and the Supreme Court’s job in interpreting them. A problem, to be sure, but also an opportunity. Instead of blaming the media for failing to bridge the gap between court and countrymen, the justices themselves should do more to shed light on their approach. Who better to educate the people on the workings of the court than its members?
Here are three steps the Supreme Court can take right now that would go a long way toward building its credibility with the American people.
Allow cameras in the courtroom
The court recently announced that it will take the bench in person next month for the first time since the pandemic began, but the public is not allowed in for public health reasons. Some journalists will have access, but only those with full-time press credentials issued by the court’s Public Information Office. While the court will continue to livestream oral argument audio, people will not be able to watch the court do its work—including debate a host of contentious issues like the future of Roe v. Wade and the Second Amendment.
Oral argument is the only chance to observe the court’s deliberative process. A video livestream would be a ready-made civics lesson on the court’s procedures and how the justices consider a question before them. With cameras in the courtroom, not only could the public observe—and learn—in real time, but it would allow justices to essentially speak directly to the people rather than rely on the media as a middleman.
Unveil the shadow docket
Lately, not every major decision has an oral argument. An increasing number of substantive decisions arrive in the middle of the night through the “shadow docket” via an unsigned, bedrock-breaking single-paragraph order, as was the case for abortion rights in Texas.
If the court ultimately guts Roe v. Wade entirely next spring, after hearing oral argument in November, the practical effect of that decision would be largely the same for pregnant people in Texas right now. Clinics would turn people away and many would likely close. But, presumably, the court’s decision would accompany a lengthy written explanation and a list of the justices making up the majority. The decision would reflect, if not reveal, the court’s deliberative process.
When the justices hear a case on their regular docket, it marinates. Counsel for both sides file multiple briefs explaining their positions and responding to the other side’s arguments. Third parties file supporting amicus briefs, sometimes dozens. Each side gets at least 30 minutes of oral argument before the nine. The justices have time to deeply consider their decision, draft detailed opinions that guide not only the parties but the lower courts, and sometimes are moved to change their votes. It is a lengthy process that takes months.
Shadow docket rulings take days, if not hours. The public has virtually no window into the court’s decision-making process. Nor is there a requirement to explain the decision or even say which justices made it. The shadow docket functions this way often because the emergency relief requested warrants the pace. But the public would benefit from more transparency about how the court reaches these decisions and who signs them. The court directly communicating more information to the public means less interpretation by the press that “makes the decisions seem results-oriented,” as Barrett said.
Keep us in the loop
The fact that Barrett’s speech happened without notification to the designated Supreme Court press corps is not unusual. It is often the case that justices appear in public with no notice. Further, no recording was allowed. Also, not unusual.
That should change, and justices should promote the heck out of their appearances. These events are an opportunity to educate, illuminate and solidify public trust in the institution of the court, and that teachable moment is lost when people are excluded. Why not invite us all to learn in the Louisville classroom?
This week, Justice Stephen Breyer said to the Washington Post, “I've seen how long it's taken to earn enough trust of the American people so that they will — and almost automatically — follow what the court said.” It’s true. The court has no power to enforce its decisions. It relies on the American people to obey the rule of law. But that trust should go both ways. The court needs to trust the American people to see more, hear more and understand more about the court’s deliberative process.
These changes would not only assuage the justices’ concerns about how the media portrays the court. It would further the Madisonian principle that giving the American people information, or at least the means of acquiring it, ensures the continuation of our democratic experiment.