The Supreme Court is still resisting transparency. What exactly are the justices hiding? | Opinion

The Supreme Court’s resistance to transparency reemerged last month, when it announced that it will not allow live audio broadcasting of decisions announced from the bench. This ludicrous decision is yet another example of the court’s historical resistance to openness.

It’s long past time for all Supreme Court proceedings to be livestreamed over video and archived, as is done in many federal appellate courts around the country. Yet the high court has traditionally refused to allow any broadcasting of audio or video of its proceedings.

In high-profile cases, the court has occasionally released audio immediately after oral arguments, and C-SPAN would then broadcast it alongside still images of the justices and lawyers. Beyond these exceptional cases, recordings of oral arguments aren’t released until the following Friday.

In May 2020, after a two-month hiatus from oral arguments due to the pandemic, the court began hearing arguments via telephone and broadcasting them live. When the justices returned to in-person arguments in the fall of 2021, they continued the practice of broadcasting the audio of the arguments live.

This practice, which has occurred without incident or issue, undermines any claim that live broadcasting would in some way change the nature of the proceedings. The reality is that the lawyers and justices are focused on the arguments and pay no attention to the fact that there is an audience outside the courtroom. I have argued several times before the Supreme Court, and the idea that live broadcasting would change courtroom behavior is inconceivable to me.

One would think that the positive experience of live audio broadcasting of oral arguments would make the court move in the direction of more openness. But now the court announced that it will not broadcast its decisions live.

Before COVID, the court’s practice was to hand down decisions through a brief presentation in the courtroom. The justice who wrote the majority opinion would announce the result and the reasons. Once that announcement from the bench was made, the court’s press office would release copies of the decision online and to journalists present in person.

But since COVID, the justices have abandoned the practice of announcing rulings from the bench. On days when opinions are announced, the press office releases them at ten minute intervals.

In December, the court announced that starting this month, it will resume the pre-pandemic practice of announcing decisions from the bench but will not broadcast these decisions beyond the courtroom. Audio of the announcements will not be made available until the following October.

I cannot fathom why the court refuses to allow people to hear its decisions when the justices announce them.

In most cases, the announcement is brief and routine. But in high-profile cases, it is dramatic. Some of what the justices say from the bench is not in their written opinions. Occasionally, such as in high-profile cases, the justices speak with great emotion.

Why can’t people hear this when it occurs?

Indeed, all Supreme Court proceedings, whether arguments or announcements, should be broadcast live with video as well as audio. The court’s decisions affect countless Americans, often in the most important and intimate aspects of our lives. Yet only a small number of people fit into the justices’ majestic courtroom.

The experience of other appellate courts shows that the presence of video cameras makes no difference in the proceedings. If cameras were allowed in the Supreme Court, people would see nine human beings struggling with difficult and important issues.

I am convinced that it would only enhance the court’s public esteem and help educate people about the law. Most important, it would increase the transparency of a crucial branch of the federal government. The court is long overdue to join us in the 21st century.