Tag: judicial legitimacy

A guest post by Lawrence Friedman

Writing in The Hill, Jonathan Turley argues that, in the midst of the COVID-19 pandemic, government should not stop working simply because members of Congress or the U.S. Supreme Court cannot meet in person. He suggests, for example, that the Court could hold televised arguments with only counsel and the justices present. This is in contrast to Chief Justice John Roberts’s decision “to suspend all further arguments,” despite a docket of cases that Turley rightly characterizes as of “enormous national importance, from health care to gun rights to immigration.” As he puts it, “because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.”

Of course, there is nothing in the Constitution that prevents the Supreme Court from operating virtually or televising oral arguments—the framers could not have imagined modern communications technology. Rather, the obstacle today remains the justices themselves. As retired Justice Anthony Kennedy once observed, there is a concern that the justices would not be able to refrain from “saying something for a sound bite.”

But the justices are not the only ones worried about the effect of remote access to oral arguments. Responding to Turley, Jonathan Grove contends that, because “the judicial branch is the only branch for which rigorous argument is still the business of the day,” cameras would threaten to turn the Court’s work into “source material for our watered-down ‘infotainment’ industry and angry Twitter partisans.” Further, he insists that the Court’s work is not essential in a time of crisis: “With some notable exceptions, meeting the immediate needs of citizens is a job that falls to state and local governments and, to a lesser extent, the executive branch. … Our constitutional system will not collapse if [the legislative and judicial] branches end up having to take extra time off.”

The problem with Grove’s argument, at least as it applies to the Court, is that, while we expect and hope the resolution of the disputes before the justices will be appropriately deliberative and thoughtful, that does not mean the work is less urgent. As of this writing, we are awaiting further clarity on a wide array of issues currently pending, including cases addressing the scope of the president’s ability to withhold information from Congress. This is an issue of particular importance at the moment, not just as it relates to Congressional oversight, but more immediately as it concerns President Trump’s recent suggestion that he has no constitutional obligation to share with Congress certain information related to the allocation of million of dollars under the new federal economic stabilization law.

Moreover, there is something odd about the argument that, were the public to have access to oral arguments before the Supreme Court – arguably, the least influential part of the appellate process – neither the justices not the advocates before them would be able to resist the temptation to grandstand. Many state high courts have experimented with televising oral arguments, and there is no evidence that either the judges or the attorneys treat the occasion with less seriousness, or that it has affected the sense of decorum that traditionally attends appellate arguments.

At the end of the day, we have passed the point at which it can be denied that the Supreme Court and its decisions have become more central to American life than the framers could possibly have imagined. It remains for others to debate whether this is a salutary development. The federal government in the past century has evolved to operate in ways the framers did not explicitly contemplate. One result has been conflicts about the separation of powers between the legislative and executive branches, and between the federal and state governments, which lawmakers and citizens alike expect the Supreme Court to resolve—and this is not to mention the myriad and important individual rights issues on the Court’s docket.

To the extent the Court has become the decisionmaker of last resort, the American people would benefit from seeing at least a glimpse of the way in which it works. Such access might provide some assurance to citizens who may question the Court’s role, or the pledge of its members to resolve the matters before them based upon argument and reason, rather than partisan affiliation. In the end, opportunities for the American people to see for themselves what the justices do could well enhance the respect upon which the Court depends for its legitimacy.