What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Court transparency — which for purposes of this post can be defined as making relevant information about the court system available to those outside the system — is often justified on two grounds. First, it is said that transparency promotes judicial accountability, a necessary counterbalance to judicial independence. Knowing that the court system’s internal activities are being externally monitored creates incentives for productive judicial behavior and discourages behavior that is lazy or corrupt. Put differently, sunlight is the best disinfectant. Second, transparency promotes public legitimacy, an essential resource for any court. If the public can peer into the workings of the courts and come away satisfied that justice is being pursued fairly and efficiently, it will be more willing to use the courts and to accept their decisions, even when those decisions are unpopular.

But even if transparency is a beneficial practice, different types of transparency might be warranted for different types of information. Consider:

Event transparency goes to what takes place in the courtroom. It is couched in the centuries-old tradition that the administration of justice must be open to the public view. Parties should be informed of the accusations against them, given the chance to confront their accusers, and presented with an opportunity to be heard. The open courtroom promotes these goals, both for the parties and for the public. Anyone in the courtroom can observe whether the parties are treated equally and with dignity, whether the judge has control over the proceedings, whether the judge exhibits competence in ruling on substantive and procedural issues, and whether the administration of justice is generally fair and efficient. A handful of courtroom events still remain out of public view (such as certain cases involving juveniles), but these are notable exceptions.

Decisional transparency goes to how judges make their determinations. As Fred Schauer described in his wonderful article, Giving Reasons, judges seek to justify their conclusions by offering reasons for their analysis. That is, Schauer asserts, “the judge who gives a reason steps behind and beyond the case at hand to something more encompassing.” To be transparent about the reasons for a decision is to invite philosophical agreement or disagreement with the asserted justification. Of course, there is no tradition of absolute decisional transparency, and indeed some types of court decisions have never required a formal explanation. Judges, for example, often sustain or overrule evidentiary objections without providing a reason, in part because doing so would make trials and evidentiary hearings too inefficient.  Juries, too, have traditionally not been asked to give reasons for their verdicts. The general verdict form used in most state and federal trials simply asks the jury to determine whether the defendant is guilty (or in civil cases, liable), and, if appropriate, what the damages or punishment should be. Whether the jury reaches its verdict by thoughtful deliberation or by raw, gut instinct is typically not a proper inquiry, unless the verdict is so against the weight of the evidence as to call the entire deliberative process into question.

Operational transparency goes to how well judges do their jobs. This goes beyond an individual case, asking instead whether a judge (or an entire court) is performing at an acceptable level. There are various, overlapping ways to measure judicial performance. Most courts, for example, keep statistics on how quickly a judge processes the cases on his or her docket, how many trials the judge conducts, how cases are finally disposed (by trial, motion, voluntary or involuntary dismissal, etc.), and how frequently the judge’s decisions are overturned on appeal. The federal courts also track how much time each judge spends in the courtroom — a concept that Judge William Young and I have termed “bench presence.” Many state judges are also subject to periodic judicial performance evaluation, which considers not only statistical performance but also subjective reviews by attorneys, court staff, and others who interact with the judge in the courtroom.

Operational data can be very helpful in assessing how judges are performing relative to a preset standard or to each other, but they can also be misused or misunderstood. For example, statistics are sometimes used by the media or the public to “rank” judges in a given jurisdiction, or to suggest that judges who are below average on a given measure (which, by definition, must include half of the judges assessed) are somehow failing in their duties. Because of this, court systems have been reluctant to release all the operational data they collect. Bench presence data, for example, is compiled on a district-by-district basis by the Administrative Office of the U.S. Courts but is not publicly released, and data on individual judges is not even compiled.

Finally, institutional transparency offers a window into the court system’s day-to-day administration. This is information on the often mundane administrative matters that affect almost every organization: staffing, budgeting, facilities maintenance, communications, technology, accounting, and so on. It also includes internal bureaucracy and committee work, which is considerable in any court system. The federal court system has an extensive network of committees, which operate under the auspices of the Judicial Conference of the United States, and state court systems have equivalent committees, which address issues ranging from rulemaking to budgeting to facilities. Court systems also create ad hoc committees and working groups to address emergent issues; a notable recent example was the federal courts’ Working Group on Workplace Conduct, which was formed in response to revelations of sexual harassment by certain judges, and which led to the formation of a new Office of Judicial Integrity earlier this year. The federal court system is open about the existence of its committees and the people who serve on them, allows public observers to attend some committee meetings, and furnishes certain committee documents for public view. But it certainly has not volunteered full details of the committees’ internal deliberations or information-gathering procedures.

As this discussion suggests, no one can expect the courts to be perfectly transparent about all of their activities. Indeed, no organization, not even a public one, can open its doors completely and still maintain its operations. Organizations are defined in part by their capacity to delineate members from non-members, and a system of pure transparency would erode the member/non-member boundary so seriously that the organization could not survive. In any organization, certain issues simply must be dealt with privately or semi-privately, both as a matter of efficiency and out of respect for the organization’s members.

Moreover, the general public does not need to know — and indeed does not want to know — every minor detail of how the courts operate. Rather, members of the public want to have sufficient access to information about the court system to feel assured that it is functioning as intended, and want to know specific details only about the (much smaller set of) courts or cases in which they have a personal interest.

Consider an analogy to an entirely different type of entity: a restaurant. As a potential customer, I would expect to have ready access to some details about the restaurant’s operations, such as the dishes that it offers and (in many circumstances) the ingredients that go into those dishes. It is therefore no surprise that most restaurants post menus outside their main doors and on their websites; doing so is relatively easy and inexpensive, and sends a highly salient signal to the public about what to expect from their establishment. The expectation that menu information will be readily available is so ingrained in some parts of the country that restaurants without posted menus lose a good deal of foot traffic.

Other data on the restaurant’s operations might not be important to me, but may be highly relevant to a smaller portion of the population — say, for example, information on potential food allergens. A restaurant may not find it necessary to include this information on its primary menu, but will make it available to inquiring customers (or potential customers) on demand. Again, this practice builds public trust because affected customers can get the details they need, and the rest of the public can be assured that affected parties are not left in the dark.

A third category of information about the restaurant might be available only to authorized parties — such as opening the kitchen for a health department inspection. Obviously the kitchen is not open to just anyone off the street, and details about its cleanliness, organization, or food storage are not free for the asking. But this greater opacity is acceptable to the public in part because authorized watchdogs and regulators can and do inquire on the public’s behalf.

In the restaurant context, these varying types of information are afforded different levels of transparency, but all still garner public acceptance because the release of information is consistent with public expectations. The same is true for the courts. Information related to event and decisional transparency is typically easy and inexpensive to provide; like a posted menu, the public expects to find such court information quickly and without difficulty. This explains (at least partially) why courtrooms are open to the public, and why judicial opinions are available on a widespread basis. But the same expectations of transparency help explain why calls for courtroom cameras have ongoing traction, and why continued avoidance of the camera issue is arguably eroding the U.S. Supreme Court’s own legitimacy. In the same vein, the Court’s refusal to provide any details of the Justices’ votes to deny certiorari has given rise to criticism that the practice prevents the public from obtaining meaningful information about the likelihood of future doctrinal changes.

Operational information about the courts is relevant to a smaller segment of the public — mostly attorneys, legal academics, and legal reporters — and accordingly is a bit harder to find. But it can be had for the asking. The federal courts post court-by-court statistics online, as well as most individual case documents (albeit for an increasingly controversial fee). Many state courts have followed suit. The overall level of transparency is not as high as it is for judicial opinions or courtroom observation, but it is acceptable enough to satisfy most inquiries. And where information is not as transparent as it should be, courts are called to task.

Institutional information about the courts is the most difficult for the public to access, and perhaps for good reason. There is little public demand for details on, say, the number of IT staffers or expenditures on courthouse maintenance. Moreover, Congressional committees serve as watchdogs over certain court operations to make sure that money is spent wisely. And institutional information is not always off-limits: in circumstances of high public interest in internal court issues, like the aforementioned Working Group on Judicial Conduct or committee proposals to change procedural or evidentiary rules, the court system finds it in its own self-interest to make at least some details of its internal operations publicly known.

This entire discussion suggests, at least to me, that the courts must operate under the premise of granting considerable transparency, at least with respect to event and decisional information. Some have disagreed, arguing that transparency itself is at odds with judicial independence, on the theory that transparency increases accountability, and accountability (at least in a political form) threatens a judge’s ability to decide cases free from political interference. But this is a false dichotomy. Judicial independence may be a core value of the American legal system, but it does not exist in a vacuum. Rather, independence depends on the legitimacy that comes from public trust; if the public does not trust the courts, it will not follow their rulings, rendering independence of no consequence. And public trust depends on transparency.

Put differently, transparency nourishes the public trust that is the lifeblood of judicial independence. This suggests that the appropriate level of transparency should be tied to public expectations. More precisely, the right level of transparency in any given situation is that which is enough to satisfy the public that the courts are operating in a trustworthy manner.

At bottom, though, transparency is not a monolithic concept. Some information demands broad dissemination, while some is naturally and sensibly kept outside public view.  Understanding the difference can provide meaningful guideposts for the transparency debate going forward.