Open Books

Why Supreme Court justices’ speeches are less important than oral arguments.

Clarence Thomas

It’s been two years now since we first took the John Roberts Court out for a spin, and it’s probably time enough to start close-reading the fine print. Scholars are becoming more comfortable describing broad trends (PDF) at the high court, refining their early predictions, or declining to do so. Whatever it is we thought we’d be seeing, I don’t imagine we expected that the court would become even more remote and aloof, just as some of its members are becoming larger than life.

Exhibit A in this respect are the comments this week of Justice Clarence Thomas, whose book tour seems to have brought out in equal measure his warm, gregarious and snarling, contemptuous sides. According to U.S. News and World Report’s Washington Whispers, Thomas told a crowd in Michigan that the reason he doesn’t speak up at oral argument—he hasn’t uttered a word, in fact, since Feb. 22, 2006—is that oral argument shouldn’t be about the justices speaking. Of course, Thomas was more subtle. As he put it, “[M]y colleagues should shut up!”

He later said he’d chosen those words for their “shock value,” but went on to add, “I think that they should ask questions, but I don’t think that for judging, and for what we are doing, all those questions are necessary.” Thomas then expanded on his colleagues’ self-indulgent need to talk at what is, after all, called oral argument, with this analogy:

Suppose you’re undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn’t go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions.

Justice Thomas is apparently of the view that there is no educative or public role for the court to play at these sessions. The court is there to render a decision, the way a machine might pop out your Snickers bar, and “debate” and “discussion” only get in the way. That’s a rather astonishing assertion about the only part of the Supreme Court’s business done in public. Implicit is the notion that the American people—presumably the patient in this scenario—would be somehow bemused and terrified at having the court’s work turn into a seminar on what the court’s work is.

Thomas also seemed to be saying that oral argument doesn’t much help the justices either. Evidently, once the cases get to the Supreme Court, there are no surprises left. “This is not Perry Mason,” he added. Whoa. If the justices don’t learn anything from oral argument, and it’s too graphic and scary for the public, we should definitely cancel it. It’s not like the marshals are getting all that much out of it.

I don’t want to read too much into a few sentences. It would, as always, be easier if Thomas and the rest of the justices were willing to make transcripts of their public remarks public. But no transcript of Thomas’ remarks is available at the court’s public information office. Based on the news accounts, one has to wonder about Justice Thomas’ ideas of judicial openness when within months of releasing the most searingly personal and angry memoir ever penned by a living justice, he claims that Americans are too fragile or clueless to witness (grosssss …) Supreme Court justices thinking out loud about the law.

At the risk of straining the justice’s inapt metaphor, the only thing more terrifying than hearing a bunch of doctors debating which procedures they’ll be using to pop out my gallbladder would be hearing one of them spewing poison about “angry white women” and “left-wing zealots” just as the chloroform was starting to flow.

Tony Mauro makes a related point today in this post at Law.com. Almost four months after collapsing from a seizure, Chief Justice John Roberts still refuses to tell the American people whether or not he has epilepsy and what drugs he may or may not be taking. Mauro quotes University of Missouri political scientist David Atkinson, who says, “The public is entitled to know what medications he is taking. It affects everyone. Because of the decisions they are making, the health of justices is not of small consequence.” There is a line between respecting a judge’s privacy on personal matters and the public’s need to know whether those personal matters will affect his performance, but that line should be drawn by someone other than the judge in question. Roberts has presided over an era in which the court has thankfully opened itself up to greater public scrutiny, with more television appearances and major newspaper interviews. But wouldn’t many of us trade some of those judicial speeches and on-camera chats for the opportunity to hear same-day broadcasts of oral arguments more than once a year?  By keeping the court’s public work mystified and secret, the justices, like Thomas, denigrate how important the actual deciding of cases is to the American people.

Roberts and Thomas, to different degrees, seem to be fundamentally misunderstanding the sort of transparency Americans need from their courts. Transparency, to them, means that judges give more speeches, do more television, and speak more personally than they have ever done before. But that isn’t nearly as important as laying out the real substance of what they do—whether it’s thinking through cases at oral argument or reassuring the public that their illness does not affect their job performance. On what matters most to many of us, the court is now somehow more “private” than ever.

It’s a disturbing new form of reality-TV Supreme Court we’re suddenly being shown, personal sufferings and rivalries laid bare, while the institution itself remains opaque and mystifying. Just last year, Roberts told Jeff Rosen that the key to re-establishing the waning credibility of the Supreme Court would be encouraging the justices to subordinate “the personalization of judicial politics” to the good of the institution. In Roberts’ view, that meant functioning more like a team, or perhaps even like a machine. But is that what we’re getting?

Transparency means being able to see a machine’s inner workings, so you can assure yourself that the gears and belts are in good repair. Airing the loves, hates, and childhood narratives of its operators, on its own, isn’t so much what we the people want from our courts, even when it’s decidedly what People magazine wants to publish.