“How do you get the American people to understand what their institutions are about, that [the Supreme Court is] not up in some heaven somewhere, where we decree things from on high, communicating directly with some mysterious source, that we’re part of the government of the United States?”
When Justice Stephen Breyer posed this question last month, the Clinton appointee wasn’t asking a hypothetical, as he often does to attorneys presenting cases. Breyer, who was testifying with Justice Anthony Kennedy at a House Appropriations Subcommittee hearing, was needling his colleagues, and he wasn’t finished. “Why should nine unelected people be making decisions that affect you in an important way?” he added. “And why should you support an institution like that?”
"Why should nine unelected people be making decisions that affect you in an important way? And why should you support an institution like that?”'
Given the vast amounts we don’t know about the court or the justices themselves, we shouldn’t – and by and large, we don’t. More and more, Americans' support is waning for a court that purposely makes it difficult to learn about upcoming cases, the conflicts of interest the justices face and the trips they take on the taxpayers’ dime. Only 23% of Americans have a great deal confidence in the court, according to a recent poll, and another survey found that a majority believe that the justices too often let their own personal or political views influence their decisions.
This erosion of confidence in the court seems to have taken its toll on Breyer. On March 23, he chose to speak out, intoning that the court could – and should – use modern technology to better inform the public about its activities.
But how would that work, and how do we get the other eight – and even Breyer, in some instances – on board? Here are some suggestions the justice can take back to his colleagues.
First, allow broadcast technology in the courtroom. While Justice Kennedy articulated his belief last month that the public would not understand oral argument since Supreme Court cases don’t take the form of the back-and-forth, Oxford-style debates we’re familiar with, that’s a gross underestimation of the aptitude of the American people.
While the legal issues at hand may not be easily comprehensible to everyone, most people are fully capable of understanding the nature of the court’s public business: two attorneys present their clients’ conflicting positions to nine judges who interrupt every now and then to clarify assertions or push their colleagues to adopt their views.
Second, use the web more effectively. In order to explain to the American people what the court “is about,” as Breyer says, the justices could use the Internet to increase transparency. The court is currently working on implementing a system that would allow attorneys to file cases and briefs electronically, which is an important first step. But it shouldn’t be the only step.
Take this example: Just hours before the House hearing he attended last month, Breyer was sitting out a case, San Francisco v. Sheehan, on whether police officers should make accommodations when arresting disabled individuals. By law, the nine are not supposed to rule on cases in which a family member is involved, where they have a financial interest or where they participated while in a previous job. Breyer’s brother, a federal district court judge in San Francisco, had heard the Sheehan case a few years prior.
But the court press office didn’t reveal the reason for Breyer’s recusal. There was no explanation from Chief Justice John Roberts and nothing was posted online. Breyer’s recusal demonstrates that the justices take ethics seriously to some extent – and the public should be informed about it. That would build confidence in the institution.
This lack of a recusal explanation is the type of unforced error that leads the public to believe the justices are “up in some heaven […] decreeing things from on high.” That the justices don’t announce their public appearances or place their annual financial disclosure reports online like the other branches are further examples. After all, we can easily search the web for a presidential candidate’s corporate board appointments or a senator’s stock holdings.
Justice Breyer clearly doesn’t have all the answers of what can be done to restore the public’s faith in the court. But it’s important that he’s asking the question, and it sounds as if he’s fed up. Here’s to hoping his colleagues see the light.
Gabe Roth is the Executive Director of the advocacy group Fix the Court.