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The Court & The Public

December 6th, 2007

In the past week I have read no fewer than three different editorials about the need for the Supreme Court to allow cameras into oral arguments, or at a minimum release same day tapes of the proceedings. Most recently I read this anemic editorial by the Washington Post. The outcry is the same… people deserve the right to see the proceedings of the court because it’s a public institution. I couldn’t agree more with the objective, transparency of public institutions is paramount to good decision making… even courts, who are the least participatory of our political institutions.

Where these critics go wrong is in thinking that cameras make a difference… or that oral arguments are someone the “functioning” of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief… oral argument is just an chance to run through the briefs and address questions raised by the justices. But it’s not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It’s all there, in the brief, which are publicly available.

Yet, this isn’t even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn’t that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!

Of course, House members don’t have to justify their votes… nor do Senators… nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It’s an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it’s the law, and the law isn’t easy… the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.

So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it… so why suddenly is everyone else?

I don’t have an answer, but I fear it’s part of a larger trend to treat the court (federal or state, doesn’t seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It’s a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I’ll crack open a book.

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