Tuesday, March 25, 2014

GWorks Reviews: What You See: An NYU Panel Addresses Supreme Court Transparency

But things that are indelicate can sometimes be beautiful.

—The Misses Allen
A Room With a View


Why not be taxonomical about things for just a minute.

There is a conversation about the Supreme Court that revolves around what people—We the People—know (and should know) about the Court. Depending on the This & That of the conversation, you might find yourself talking about (even bemoaning) how little We seem to know about the Court. The conversation might focus on what the Court might do to explain itself or what We might do to understand better what the Court does.

Again depending on the This & That of things, you might find yourself talking about ‘the Court and transparency.’ And in this discussion, it is common enough to focus on cameras in the court. It is the topic on which Senators at Supreme Court Confirmation Hearings so often focus. Why not us?

I am happy to report that there was a public conversation last Friday that went another way.

Supreme Sunshine: Shining a Light on the High Court, Friday 21 March 2014, was presented by the Coalition for Court Transparency, New York University (in Washington, DC) and the Reporters Committee for Freedom of the Press.

Dahlia Lithwick, a Senior Editor at Slate who “writes about the courts and the law,” including covering the Supreme Court, was moderator. Panelists were:

Bruce D. Brown is Executive Director, Reporters Committee for the Freedom of the Press.

William Jay is a Partner at Goodwin Procter, LLP. Mr Jay argues cases before the Supreme Court. He was a judicial clerk for Supreme Court Associate Justice Antonin Scalia, October Term 2004.

Clay Johnson is a Technologist and Presidential Innovation Fellow. His work includes RFP-EZ, “a web-based application...meant to make it easier for small businesses to sell their services to government buyers, and for contracting officers to buy small dollar value services.”

Eric J. Segall is the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law. He teaches Constitutional law and about the federal courts.

Sonja R. West is Associate Professor of Law at the University of Georgia School of Law. Professor West was a judicial clerk for Supreme Court Associate Justice John Paul Stevens, now retired, October Term 2004. She teaches Constitutional law, media law and about the Supreme Court.


Ms Lithwick, a fine moderator, had a great deal to do with this different and better direction. She began her brief introduction by saying she did not think transparency and the Court was all or primarily about cameras. With that understanding, Ms Lithwick asked the panelists to introduce themselves in part by discussing what they thought transparency means.

The panel responded...relevantly.

Shocking, I know.

The panelists’s answers complimented one another in a sense. At least, on reflection, I seem to have been able to stitch together something coherent. (I think that is called confirmation bias. But, that is for another day.)

William Jay, a Supreme Court litigator at Goodwin Procter, was perhaps the most practical. He was interested to have access to the information the Court uses to decide cases. To illustrate what he meant, Mr Jay cited two instances in which the author of a Court Opinion had reached outside the record—in one instance to data the Court solicited on its own from the federal Bureau of Prisons; in another instance to social science research consulted independently—to support the Court’s Opinion. The issue for Mr Jay was, as a litigator, the desire and the need (and, though he did not say it, I expect a certain level of frustration at the impossibility) to address in Briefs and Oral Argument—the explicit and sanctioned access a litigator gets to Supreme Court decision-making—the grounds, all the grounds of a Supreme Court Opinion.

Though he did not, one might extend Mr Jay’s concern beyond his very clear professional and at some level technical point. There is in Mr Jay’s wish, it seems to me, a democracy question, too.

It is, one might argue, profoundly anti-democratic to engage in institutional decision-making only have the decision-maker inform you, the decision having been made, the grounds of the decision were never made available to you. How, one might ask, is Mr Jay to represent his client before the Court when the information and ideas important to a Supreme Court decision become public only in publication of the Court’s Opinion, after Mr Jay has done the job he knows he can do?

But why should We the People have access to this information? Is the desire (the need) for technical or even institutional understanding enough of a reason to get access to information the Court currently does not or cannot publish?

Surely, information—the wheat and chaff of Constitutional decisions—has Constitutional value, is relevant to Citizens in understanding the Court. It is not only the Court’s decisions and their strictly legal grounds that are important to understanding the Court. To understand the Court it is important to access, for lack of a better term, extra-legal data the Court considers and how (whether it uses that data or not) in reaching a decision.

Yet, while the question and its answers are important, I think the question inverts the democratic model.

The question of information in a democracy is not, ‘To what information are the People entitled and how should the institutions of government deign to grant the People access?’ In a democracy, the presumption is that the sum and substance, the wheat and the chaff of government resides in the People. The People have access to it because it is theirs.

Put another way, it seems to me the People do not have only discretionary and revocable privilege to access the data of government—a kind of information easement. The question is on what ground the institutions of government may restrict public access.

Of course there are limits.

In a sense, this was Professor Segall’s and Professor West’s point. ‘What is public should be public,’ Professor Segall repeated. And, as he and Professor West argued, the presumption is in favor of public access to information not secrecy. 

There are points of Court decision-making that are necessarily private, Professor Segall said, citing as the most obvious example the Conference at which the Justices alone meet to review and vote on cases and at which Opinion writing assignments are made. But what is public—legal Briefs, Oral Argument, a Justice’s recusal from a case, a Justice’s public appearances, financial disclosures—should be public. And, as the Court’s docket is almost entirely discretionary and it can be as important what cases the Court chooses not to hear, surely the votes on what cases to take and reject should be public, too.

Legal Briefs, Oral Argument and the Court’s Opinions are available. The rest of it is not as public as you would think.

It is useful and interesting that this panel was able to describe both how one might think about transparency and the Court and what that transparency might look like. Would that all panels were so clear.

At least two related difficulties struck me.

The first difficulty: The panel avoided—perhaps wisely—the question of how the Court might effect more and better transparency. There are, it seems to me, at least two considerations here. One rather mundane; the other more serious. 

For all its majesty, the Court is a sometimes surprisingly small institution. It has few members in addition to the nine Justices and their law clerks, a small budget and a dauntingly important and demanding task. And, for example, while the Court’s Web site is serviceable, it has taken what seems a lot of effort to get to its present state, which is not what one would describe as having great or dynamic value to understanding more than the mere existence of the Court.

If the Court is to do this work, who will do it? What will it look like? How much will it cost?

There is a Constitutional issue, too. To the extent transparency means the Court explaining beyond the Court’s Opinions what the Court’s Opinions mean, what theories of law might mean in practice or how the Court’s institutional position affects its decision-making, there are important legal and institutional constraints on the Court that prevent it from saying more.

I should be careful to note an important point Mr Johnson raised here. Considerations of capacity and Constitutionalism are important. But, we have ceded to private companies like Lexis-Nexis and Westlaw this public information with little regard for the financial and civic cost.

The second difficulty: The panel avoided—perhaps wisely—how and whether the transparency they conceived of would achieve the ends the panelist had in mind.

There is, it seems to me, a fundamental problem with conversations of open-ness and government. We have entered an age in which the access to information far exceeds our capacity to digest, edit, apply and restrict it. We are awash in data. And, so far as I can tell, there are important disconnections in how we think about the democratic value of access to information; how we have pursued that value up to now; how and how quickly technology inevitably changes the contours of this question; and government capacity to effect change.

This is not an argument against government’s obligation to its Citizens. This is a question about what, how and who thinks about and effects open-ness and government in an information revolution. Government, by definition, must face the problem of how it serves Citizens. This does not mean we are without answers. It means the answers are changing—fast. As the panel demonstrated, if unwittingly, we are in the throes of contending not just with the answers but with what are the right questions.

As Mr Johnson pointed out, transparency is in (large?) part a cultural issue. Access to the information of the Court is important—essential—, Mr Johnson argued, to education, history and government accountability. It seems to me, as a technological (and private) matter, we have a surfeit of tools we need; as a cultural (and public) matter, we do not seem so sure or so able. In part, this disconnect of capacity and culture is what makes work like Mr Johnson’s, on improving government procurement, so valuable: His work is a practical (and almost tautological) effort to use technology to improve among other things how government uses technology.

After all of this, I suppose I should confess, I am not a fan of cameras in the Court. I do not understand cameras in the court as necessary—certainly not the only or the best means—to understand what the Court does or how.

Odd—even self defeating—for someone who makes films.

The most important thing the Court does as an institution—what has binding power on the People—is, as the Court itself said at The Beginning, ‘to say what the law is.’ The Court says what the law is through a process—through legal Briefs, Oral Argument, its internal deliberation and its written Opinions about the ‘Cases and Controversies,’ the concrete legal disputes before the Court. The Court does not theorize in any binding way about what the law might be; it does not advise in advance on the constitutionality of proposals by the People or the Branches of government. And, with the exception of its internal deliberation and visual recording of its Oral Argument, the Court’s data is available—over time.

I worry that, without explanation, television will obscure the Court. I worry that, unattended, the raw data of the Supreme Court is difficult to understand. I worry that We will leave that data unattended. We will abandon it as we have abandoned the elementary civics lessons, as we have ceded public data to private actors.

At the same time, I am not a rabid opponent of cameras in the Court.

We should have access to as much of the Court as we can get. There should be a regularized process to access, for example, the papers of a Supreme Court Justice. I will be happy when this happens. For all the risk, it is an invitation to increased understanding of an august institution.

I do not worry that Jon Stewart will make the Court and its members look foolish. Jon Stewart is funny. Mockery is important to public debate. And the dirty secret of The Daily Show is that it has become a trusted news source.

I do worry that media will get the Court wrong. But, as Justice William J. Brennan, Jr., in quoting James Madison, noted in Sullivan v. New York, the landmark Free Speech/Free Press case that celebrated its fiftieth anniversary this 9 March, “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.” And, as panelists on Friday pointed out more than once, the Court’s restriction of access only feeds speculation and multiplies the risk of error.

As for the idea We so often hear that the citizens of a democracy somehow cannot handle the information to which open-ness in government would give access or more access would somehow sully the institutions of government, whether by virtue of citizens seeing how the sausage is made or mysteriously changing Supreme Court Justices and those in their ambit into circus performers, I see at least two problems with these curiously self-deprecating and self-serving arguments to the delicacy of democracy:

First, they insult democratic value—the rights, responsibilities and capacity of Citizen government. Second, as the Misses Allen said, ‘things that are indelicate can sometimes be beautiful.’