The “Inside Story” of the Supreme Court

What the justices hide from the public speaks volumes

U.S. Supreme Court Justice Stephen Breyer
“The inside story of the court is normally that there is no inside story. Pretty much what you see is what you get.” Justice Breyer on “Morning Joe,” Oct. 24, 2016

If only that were the case, Justice Breyer. In truth, and in opposition to what the justices would have you believe, there is much more to the story of the Supreme Court than the 70 or so opinions it issues each year.

Did you know that the justices recused themselves nearly 200 times in the last year from petitions that reached their desks — and without a single explanation as to how or why any of them had a conflict requiring them to step aside? Or that this past spring, they refused to release their statutorily required financial disclosures reports online, as members of Congress and the President do each May, instead choosing only to issue them by paper and at the end of June?

This fall, following the controversy around the lack of health information from the two major-party presidential candidates, the justices declined to publicize basic details about their own well-being, with Chief Justice John Roberts sardonically writing in response to a reporter’s inquiry that the court would “provide health information when a need to inform the public arises.”

For decades, Roberts, Breyer and their colleagues have rested on the assertion that all they need to divulge is the reasoning behind the decisions they make in the cases they choose to hear. But they are missing an opportunity to be a larger part of our democratic conversation by, time and again, shunning best practices in transparency from public institutions.

The high court’s theory of governance is not only grossly outdated but it’s mystifying at a time when other Washington bodies have taken discrete steps toward greater openness. As of 2012, members of Congress and cabinet-level officials are now required by law to issue information within weeks of their occurrences about their stock transactions and privately funded travel.

The justices, on the other hand, often do not report these incidences or may do so more than a year after they happen. And unlike in the other two branches, the high court has no internal ethics body or inspector general that sanctions these types of travel arrangements and securities transactions as they occur.

Breyer concluded his interview by sharing memories of Justice Antonin Scalia, who passed away in February. He recalled how the two of them would often engage in heated back-and-forth discussions during oral argument, and his fondest memory was speaking with the late justice before 2,000 students in Texas about their often conflicting views of the Constitution. While that appearance was not videotaped, a similar event in 2006 was, and it gives a rare and insightful glimpse into how the justices see their role within our democratic structure.

On “Morning Joe,” Breyer seemed to acknowledge that such an occasion should not be uncommon. “If we have one problem in this country that affects me and, I think, affects many in public life,” he told Mika Brzezinski, “it is to get [students] to understand how their government works.”

But the greatest travesty with respect to the “inside story of the court” is that its foremost public exercise — oral argument — is not accessible to a wide audience given the justices’ insistence on maintaining the high court’s broadcast ban. There is simply no substitute for watching a group of highly intelligent individuals grapple with profound legal questions that impact all of our lives.

Reading the transcript that evening or listening to the audio upon release at the end of the week may have held up to institutional scrutiny in the 1930s (the decade in which three of the eight were born), but it no longer does, especially since video is the primary means for conveying newsworthy information today.

While the justices granting broadcast interviews is valuable, the court has a myriad of chances throughout the year to help the public better understand its substantial role. Due to its broadcast ban and its refusal to follow best practices in government accountability, the court has forsaken such opportunities, and unfortunately, millions of Americans are unable to see what truly comprises the “inside story” of its most powerful public institution.

Gabe Roth is executive director of Fix the Court, a national nonprofit that advocates for greater openness and accountability at the U.S. Supreme Court.

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