Federal Courts and Nominations

Supreme Court urged to open up

By Richard Wolf


WASHINGTON — A year-long string of controversial cases the general public couldn’t see at all, or hear until later, increased pressure on the Supreme Court to consider lifting the veil on its proceedings.


Since the end of the court’s blockbuster term in late June, members of Congress and watchdog groups have urged the justices to allow cameras into the courtroom for the first time, broadcast live audio of their proceedings and adopt a binding code of ethics.


Many of the demands come from Democrats and liberal interest groups concerned about the court’s conservative tilt. Though they are not likely to prompt Chief Justice John Roberts and his colleagues to make immediate changes, they could eventually help loosen up an institution that guards its privacy and autonomy.


“There have been baby steps taken to make the court more transparent, but it is still in many respects the least transparent branch of the three branches of government,” says Doug Kendall, president of the Constitutional Accountability Center.


Same-day audio from court arguments has been released in a few cases, beginning with Bush v. Gore in 2000. Same-day written transcripts have been made available to the public since 2006.


Roberts, who became chief justice in 2005, has argued that the judiciary is the most transparent branch of government. “Everything we do that has an impact is done in public,” he said in 2011. “Our decisions are out there.”


When the court held oral arguments during its recent term on same-sex marriage, voting rights and affirmative action, only a few hundred people were able to watch. Many were lawyers, journalists, guests of the court and those who could afford to pay others to hold their place in line.


For the historic gay marriage cases, the court broke with its normal policy and released audio transcripts later in the day. That was the first time in a year that members of the public didn’t have to wait until week’s end to hear the justices in action. Before 2010, they had to wait until the end of the term.


When it came time to issue decisions on the term’s major cases, Sen. Dick Durbin, D-Ill., urged that live audio be distributed, to no avail. Days later, he and Sen. Chuck Grassley, R-Iowa, introduced legislation calling once again for cameras in the court.


The high court’s approval rating in a recent USA TODAY poll hit 43%, an eight-year low. A coalition of public interest groups called on the justices last month to release their financial disclosure reports online. That was followed this month by a group of Democratic senators and House members urging the justices to adopt a code of conduct.


Ultimately, it won’t be poll ratings, public pressure or congressional action that moves the nation’s highest court, but the preferences of its nine justices.


“How do you second-guess a court that’s supreme?” says Tom Fitton, president of Judicial Watch, a conservative group that investigates and prosecutes government corruption.




Over the past quarter-century, the court has moved in fits and starts toward more openness.


Two pilot programs have inserted cameras into some lower federal courts. The latest three-year pilot, set to conclude next year in 14 district courts, from Florida to Washington and from Massachusetts to Guam, got off to a slow start and has been beset by the refusal of many lawyers and clients to have their civil cases filmed.


Nevertheless, no mishaps have been reported when the parties do agree, and the introduction of court-operated cameras has gone smoothly, says Kansas District Court Judge Julie Robinson, who heads a committee of the Judicial Conference of the United States that will examine the results.


“What I’m hearing is that people almost forget the cameras are there. We don’t really think about them,” Robinson says. “We have now become an institution that makes our records transparent. Why not make our proceedings at the trial level transparent?”


The appellate level should be even simpler, advocates argue. Already, the appellate courts in the 2nd and 9th Circuits — covering 12 states from Vermont to Hawaii, including California and New York — permit cameras. At the Supreme Court, oral arguments are a simple, hour-long give-and-take between lawyers and justices.


That hasn’t stopped the justices from remaining opposed to cameras — even those, such as Sonia Sotomayor and Elena Kagan, who voiced support for the idea originally.


Cameras “present all sorts of challenges,” Roberts said in 2011. He mentioned the potential impact on lawyers and judges — who, he said, “fall into grandstanding with a couple of hundred people in the courtroom.”


Justice Anthony Kennedy said in New York last month, “My colleagues and I are not immune from the instinct to grab a headline, and I don’t want to think that my colleague asked a question for the benefit of the press. I don’t want to introduce that insidious dynamic between myself and my colleagues.”


In an interview with USA TODAY, liberal Justice Ruth Bader Ginsburg said cameras could give Americans the misimpression that everything depends on the oral arguments, rather than the reams of legal briefs, lower court rulings and historic precedents the justices read and research.


“The notion that it’s a contest between two advocates, and the better one is going to win, is totally, totally false,” she said.


The cable network C-SPAN has fought for decades without success to get its cameras into the Supreme Court. At a Senate hearing in 2005, its founder, Brian Lamb, said, “The judiciary has become the invisible branch of our national government as far as television news coverage is concerned, and increasingly, as far as the public is concerned.”


Bruce Collins, the network’s general counsel, says the justices limit the amount of public access they will allow. “The founding fathers put limits on all the rights, including the right of free speech,” he says. “The Constitution is satisfied when you have seats in the courtroom for the general public.”


But those seats are hard to come by. The court fits about 400 people, but many of the seats are reserved for members of the Supreme Court bar, friends and family, journalists and others. For the most popular cases, members of the public must wait in long lines for hours or even days. Most of those who do get in can stay only a few minutes before making room for others.


Even the court’s marble plaza remains off limits to demonstrators, who must stay on the sidewalk. When a district judge ruled in June that the court’s ban on protests there was unconstitutional, the court quickly issued a regulation to replace it.




The debates and decisions of the court aren’t all that interest lawmakers and watchdog groups. They also want increased access to the justices’ financial disclosure statements and a more intensive focus on ethical behavior.


Fueling those demands are some questionable actions by justices, ranging from speeches at fundraising events to refusals to recuse themselves from cases. Liberal groups cite appearances at quasi-political events by Justices Antonin Scalia and Samuel Alito as examples. Conservatives mounted an unsuccessful effort to get Kagan to recuse herself from last year’s case on President Obama’s health care law, citing her prior work as U.S. solicitor general; liberals sought to pressure Justice Clarence Thomas off the case because of his wife’s political activities.


The justices’ actions in those and other cases do not require justification. That’s because the justices, unlike lower court judges, are not legally bound by a code of conduct.


“The guidelines contained in the code exist to ensure that the public has faith that judicial decision-making is based solely on the facts and the law, not politics and outside interests,” Rep. Louise Slaughter, D-N.Y., said upon introducing the latest legislation, along with Sens. Chris Murphy, D-Conn.; Richard Blumenthal, D-Conn.; and Sheldon Whitehouse, D-R.I.


Roberts and several other justices have said they routinely consult the Code of Conduct for United States Judges without being legally bound by it. Because there is no higher court, any ethics code would have to be self-enforced.


Even though the justices abide by congressional directives — such as by filing annual financial disclosure forms and limiting their outside income and receipt of gifts — it is not clear that Congress even has that power over the court.


“At the end of the day, no compilation of ethical rules can guarantee integrity,” Roberts wrote in his 2011 year-end report. “Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”


Justices Kennedy and Stephen Breyer made those points to a congressional panel in 2011. Breyer said he consults seven volumes of ethics to decide such matters as when to step aside in a case. Unlike the lower courts, he noted, the Supreme Court has no way to replace a judge who recuses himself.


“We do follow the rules. They do apply,” Breyer said. But a battle between the branches over legislation, he said, “produces heat and not too much light.”


That’s not good enough for government watchdog groups that wrote to Roberts in June, urging that the justices post their financial disclosure forms online as soon as they are finished. Reporters must request printed copies of those reports from the Administrative Office of the United States Courts.


“The justices are on notice that members of Congress, as well as certain organizations, have raised concerns,” says Nan Aron, president of the liberal Alliance for Justice. “This is a problem peculiar to the Supreme Court.”

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