Transparency and its limits at the Supreme Court

Last spring, after COVID-19 forced the Supreme Court to abandon in-person oral arguments, the justices shifted to hearing cases over the phone and allowed news organizations to broadcast live audio of the proceedings, since there would be no courtroom for members of the public to sit in—a departure for an institution that had long resisted live feeds, and a hopeful sign for judicial transparency. This summer, with COVID still a problem but life in many respects inching back toward normality, questions were raised as to how the court would handle its upcoming session. Last month, we learned that the justices would return for in-person arguments starting in October, and that lawyers and fully-credentialed court reporters would be allowed inside the chamber, provided they submit to testing and wear N95 masks; there would be no return, yet, for the viewing public, but the live audio would continue—and this time, the court would make a feed available on its own website, not just via the media. Yesterday, the court convened, the audio went up online (though someone apparently forgot to tell the “Oral Arguments” page of the court’s website), and reporters filed in. Mark Walsh, of SCOTUSblog, noted that the distractions of covering arguments from homeToday, The View, The Price is Right—were no longer available. “The court,” he wrote, “is edging slowly back to its normal argument routines.”

Not that everything was back to normal: one of the justices, Brett Kavanaugh, tested positive for COVID and had to continue with remote participation; another, Clarence Thomas, was in the room and asked questions, two conditions he has rarely fulfilled at the same time. More broadly, the court is in an abnormal moment for reasons that go far beyond COVID. Since they last heard arguments in person, the justices have come under fire more for the arguments they haven’t heard than those they have, with critics decrying their increasing propensity to make consequential rulings on their “shadow docket”not least the decision, last month, not to block a law that gutted Roe v. Wade in the state of Texas. With a narrative taking hold that the court has been politicized and polls suggesting that its standing with the public is notably low, numerous justices have touted their independent-mindedness in interviews and speeches—demonstrating a “new level of defensiveness and anger,” CNN’s Joan Biskupic writes, that itself represents a departure from their typical reticence to court controversy away from the chamber. Stephen Breyer, a liberal justice, embarked on a full-blown media tour to promote his new book, which is unsubtly titled The Authority of the Court and the Peril of Politics and warns that the former is undermined when justices get pigeonholed in the public eye as “liberal” or “conservative,” labels that the media likes to… well, I’ll refer you to the beginning of this sentence. (Progressive pundits have called on Breyer, who is eighty-three, to retire while Democrats have the power to confirm a successor; in interviews, Breyer has tried to skirt that question, though he did tell Stephen Colbert that he would “prefer not to die, period.”)

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Three conservative justices have all also spoken out recently, and each has been more explicit in blaming the press for cultivating the perception that they have an agenda. In a speech last month, Amy Coney Barrett criticized “the media” and “hot takes on Twitter” for reporting the results of cases and leaving “the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision,” and pushed back on the notion that the justices are “a bunch of partisan hacks.” (Her remarks were introduced by Mitch McConnell.) A few days later, Thomas gave a speech of his own and blamed the press for making it “sound as though you are just always going right to your personal preferences”; last week, Samuel Alito went further still, delivering a huffing critique of press coverage of the shadow docket and Texas decision, in general, and an article by The Atlantic’s Adam Serwer, in particular. “The media and political talk about the ‘shadow docket’ is not serious criticism” but rather “feeds unprecedented efforts to intimidate the court,” Alito said. “Journalists may think we can dash off an opinion the way they dash off articles.” (Attendees of the Barrett and Alito speeches were banned from recording them—though reporting and, in the latter case, footage were eventually disseminated.)

These criticisms ranged from the tendentious to the silly to the hypocritical. (Of course journalists report the results of cases; the shadow-docket decisions have often given us little else to work with.) In recent months, some observers have argued that, if anything, court coverage has helped the justices to portray themselves as apolitical brokers; as the previous term drew to a close, a spurt of reports and analyses in major publications made the case that the conservative majority had been surprisingly moderate, or at least divided, even though it united for major rulings, not least around voting rights. Jay Willis—the editor in chief of Balls and Strikes, a site that launched last month, with support from the nonprofit group Demand Justice, promising “progressive, bullshit-free commentary” about the legal system—argued recently that “for all the fawning media attention paid to occasional displays of unanimity and intermittent deviations from conservative orthodoxy, Roberts and company, as they always do, fell in line on the issues that matter most to the future of the Republican Party and the conservative legal movement.” Such coverage, Willis went on, is proof that “legal journalism is broken,” beset by many of the same afflictions—access demands, insufficient diversity, a self-interest in projecting savviness, excessive focus on process over outcomes, bothsidesism—as political coverage.

There is plenty of room for nuance in coverage of the court, and plenty of coverage has dexterously explored it. Still, Willis convincingly illustrates the hazy line not only between coverage of the court and “politics,” but between those subjects themselves. A big problem with bothsidesism in political journalism is that it misses the forest for the trees; legal journalism, too, must grapple with a context that not only extends far beyond the justices’ decisions, but can be distorted by too close a reading of the letter of those decisions, especially entering a new term with major decisions on abortion, guns, and more on the docket. As Dahlia Lithwick, of Slate, and Steve Vladeck, a law professor at the University of Texas, put it recently, with reference to Barrett’s media criticism, “it’s in everything else the court does, either in the shadows or in public appearances, that is making its increasingly partisan nature become even clearer.” The bigger picture, they add, “is what we all need to be watching, as opposed to tallying wins and losses on a scoreboard that often records only a fraction of the game.”

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This bigger picture, of course, bears directly on transparency. Live audio of arguments is good and important, and the many news outlets that are pressing publicly for it to be made permanent are right to do so. (For now, the court has only committed to extending the arrangement through December.) The related debate around cameras in court matters, too. But the fact of transparency isn’t as important as what the justices do with it; Trump’s lack of filter, after all, was hardly a net positive, and it’s hard to conclude otherwise of media-bashing speeches from the justices, even if the rhetoric has been pitched at a higher grade level. After all, the transparency they are offering has clear limits. There’s no live audio for the shadow docket.

Below, more on the court:

  • A beginning or an end? Even the move to put the audio feed on the court’s own website, rather than broadcast it exclusively through the media, may not be as positive a step as it seems: Gabe Roth of Fix the Court, a nonprofit that advocates judicial openness, told Bloomberg Law recently that he fears that the shift could represent “the beginning of the end for live audio at the Supreme Court,” by making it “easier for the court to take that access away once its operations go back to what they were pre-COVID.” Jaime Santos, a lawyer, disagreed. “It’s very hard to take away a public right after you’ve given it,” Santos said.
  • A reader’s guide: Lithwick and Vladeck’s recent article for Slate was pitched as a response to the “annual bumper crop” of “‘curtain-raiser’ articles outlining the biggest cases the justices are set to hear during the term.” These mostly focused on the abortion and guns cases, but those aren’t the only key cases coming up. “What you are not hearing about the court as the curtains come up on its 2021 term is likely to be as important as what you are. To truly follow the Supreme Court in 2021, one must challenge the terms on which most public discourse about the court even takes place.”
  • A rebuttal: In a speech on the floor of the Senate, Dick Durbin, an Illinois Democrat, criticized the court’s use of the shadow docket and hit back at Alito for remarks he made in his recent speech. “Some of the strongest warnings about the court’s changing use of the shadow docket have come not from politicians like ourselves, or journalists, but from Justice Alito’s own colleagues on the Supreme Court,” Durbin noted, pointing to criticism of the Texas decision from justices Sonia Sotomayor, Elena Kagan, and John Roberts. “Justice Alito may bristle at perceived criticism of the court’s practices, but that does not mean the court should be immune from scrutiny from the American people, a free press, or the legislative branch of government.” Last week, the Senate Judiciary Committee, which Durbin chairs, held a hearing on the shadow docket, and pledged further scrutiny.
  • In related news: Anita Hill—who testified that Thomas had sexually harassed her during his Supreme Court confirmation hearing, in the early nineties, and is now a professor of social policy, law, and gender studies at Brandeis University—is out with a book titled, Believing: Our Thirty-Year Journey to End Gender Violence, and has done a series of interviews about it. Jessica Bennett, who covers gender for the New York Times, told Hill that she’d been shocked to learn, from the book, that Redbook, a women’s magazine, was the first publication to conduct a national survey of sexual harassment, in 1976. “Redbook did it because Redbook was the one that cared,” Hill said.


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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.

TOP IMAGE: Members of the US Supreme Court. Erin Schaff/The New York Times via AP