The Supreme Court’s Lack of Self-Awareness Stretches Across Decades

The justices should look no further than their own decisions for guidance on pro-transparency reforms

Maybe “Equal Justice Under Law” should be changed to “Do As We Say, Not As We Do.”

In a recent New York Times essay, I wrote about how there are a number of rarely talked about cases that reach the Supreme Court each year and comprise what I call the “self-referential docket.”

These are proceedings with direct parallels to how the justices act as stewards of their institution — such as ones holding that anti-protest buffer zones are unconstitutional, even as the justices maintain such a zone in front of their own building — and instead of changing their practices in light of these cases, the jurists carry on as before, maintaining their own antiquated rules when it comes to openness and accountability.

Given space constraints, I was only able to mention a handful of these cases in the Times piece, yet many others, noted below, are as important and give additional insight into the workings of the court.

The lack of broadcast access to the Supreme Court is often the most discussed issue when it comes to its neo-Luddism. Unsurprisingly, this subject has reached the justices a number of times over the years.

In 1965 the justices heard Estes v. Texas, in which they held that Billy Estes’ due process rights were violated by the publicity associated with his trial. What stands out from this case, though, is Justice John Marshall Harlan II’s dissent, which stated that “the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.”

Arguably that day had come by 1984 when in Press-Enterprise v. Superior Court Chief Justice Warren Burger wrote, “The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed. […] Openness thus enhances both the basic fairness […] and the appearance of fairness so essential to public confidence in the system.”

Placing cameras in courtrooms would seem to mitigate any concerns those not attending hearings may have as to whether “standards of fairness” were are being obeyed. Yet the high court today carries on as if allowing video or even live audio would change the nature of their proceedings, despite mountains of evidence — both empirical and anecdotal, in state supreme courts and in courts of last resort the world over — to the contrary.

Perhaps the most important self-referential case is one that reached high court but not its docket. The justices decided not to grant review in 1979 to Duplantier v. U.S., in which the Fifth Circuit upheld a post-Watergate provision requiring federal judges, including those on the Supreme Court, to file annual financial statements available for public inspection. That meant the disclosures law was kept on the books, and the routine of filling out and filing annual reports continues to this day.

What is exasperating about the practice, though, is how, unlike the other branches, the judiciary still refuses to post these disclosures online. Further, there is no official ethics office within the high court that ensures the accuracy of the justices’ reports.

The most meta case in the high court’s self-referential docket was one initially ruled on in 2014 by a retired justice who finds time to sit on a lower court. Former Justice David Souter, who stepped down from SCOTUS seven years ago, wrote for a three-judge panel of the First Circuit in Thayer v. City of Worcester that a controversial municipal ordinance outlawing panhandling in certain public areas could go into effect.

While consistent with the justices’ attitude toward demonstrations on their 20,000-sq.-ft. front plaza, Souter’s opinion was incompatible with the high court’s recent holdings in various freedom of speech and assembly cases. Not only did the justices decline to hear Thayer in 2015 but they also signaled the case should be retried in light of recent anti-buffer zone rulings. And once it was, a federal judge (not Souter) deemed the anti-panhandling law unconstitutional.

These are just a handful of the self-referential cases that the Supreme Court has ruled on. There are plenty more, and please send your suggestions for others to add to the list below to Gabe@FixTheCourt.com.

It is our hope that publicizing these cases will help the justices realize that they need to look no further than their own decisions for guidance on how to establish a more open and accountable institution.

LIST OF CASES IN THE SUPREME COURT’S SELF-REFERENTIAL DOCKET

Year decided: Case, issue (court of origination if Supreme Court denied review)

1965: Estes v. Texas, broadcast access

1976: Nebraska Press Association v. Stuart, broadcast access

1979: Duplantier v. United States, financial disclosure reports (Fifth Circuit)

1984: Press-Enterprise v. Superior Court, broadcast access

1991: Gregory v. Ashcroft, term limits / mandatory retirement age

2009: Caperton v. Massey, recusals

2011: Snyder v. Phelps, anti-protest buffer zones

2011: Walmart v. Dukes, stock ownership

2015: Williams-Yulee v. Florida Bar, judicial conflicts of interest

2015: McCullen v. Coakley, anti-protest buffer zones

2015: Thayer v. City of Worcester, anti-protest buffer zones (First Circuit)

2016: Federal Energy Regulatory Commission v. Electric Power Supply Association, stock ownership

2016: Hodge v. Talkin, anti-protest buffer zones (D.C. Circuit)

2016: Williams v. Pennsylvania, recusals

2017 (exp.): Salman v. United States, stock ownership