• A Modest Proposal

    by  • November 12, 2014 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [Reposted from ISCOTUSnow]


    Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

    While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.

    Furthermore, as I have explored in a law review article and previous posts, the justices (or perhaps their clerks) seem to put a good deal of time and thought into distilling their complex, often technical written opinions into a more accessible, compelling product for general consumption. At their best, opinion summaries—and particularly oral dissents—are the product of a thoughtful abridging of the written opinion. Justices sometimes reorder key points. They amplify certain arguments while muting others. They often highlight more tangible or evocative examples. Sometimes they land upon a nice turn of phrase that was not in the written opinion. (One of the most memorable lines in Justice Breyer’s oral dissent in Parents Involved—“It is not often in the law that so few have so quickly changed so much”—appears nowhere in his written dissent.) One would think the justices would want this live, condensed version of their opinion to be widely available. As it is now, the justices perform for a relatively miniscule audience in the courtroom. The best they can hope for is that a particularly notable performance might merit a mention in subsequent press accounts. This all makes little sense.

    So here is my quite modest proposal: The Supreme Court should allow live broadcast of opinion announcements—preferably video, but audio would do. Or, if not live broadcast, then at least immediate release of video (or audio) recordings.

    Bench announcements should be more important than they currently are. The voices of the justices, describing the reasoning behind their opinions in their own words, using language designed to appeal to the broader public, should be a part of the public debate that follows the release of a Court decision. They should be immediately available for teaching purposes as well. I have found bench announcements terrific teaching tools, particularly when working with audiences of non-lawyers. Not only do the justices do much of the work of condensing complex issues and highlighting key points, there is also something particularly engaging for students about hearing the opinions read in the justices’ own words. Why should students and engaged citizens need to wait until the following Term to listen to these bench announcements?

    If the Supreme Court justices have any interest at all in bringing the Court’s public communications into the new century, and they certainly should, live video broadcast of opinion announcements would be a low-risk, high-benefit first step.