The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.
And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.
Chemerinsky, founding dean of the University of California, Irvine School of Law, was the keynote speaker at a symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof -- between the Supreme Court and the public.
The conference coincided with renewed calls for the Court to allow cameras in, this time for the upcoming oral argument on the constitutionality of the Affordable Care Act. Several requests for broadcast access are pending before the justices.
“People should be able to watch their government in action, and [the Supreme Court] is a crucial institution of government,” said Chemerinsky, who added that he thinks a First Amendment argument in favor of broadcast access could be made.
Chemerinsky said many members of the public think that the fate of the health care reform law will turn on issues of individual liberty, rather than on the Constitution’s commerce clause. Airing the oral arguments in late March would clear up that misunderstanding, Chemerinsky said, and would be a “tremendous civic education.”
The public would see nine “exceptionally intelligent” justices working hard to get the right answer, he said, asserting that televised oral argument would enhance, not diminish, the Court’s stature with the public. It might even encourage “better behavior,” Chemerinsky said. “Justice Thomas might ask some questions.”
Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.
For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”
The Court could also be doing more to inform the public when it releases opinions, Chemerinsky said. It should be telling in advance which decisions it will be releasing – as courts in California and Canada do – to assist the press and commentators in getting ready to write about its decisions. The justices should also spread out the release of opinions “to allow the press to accurately report” on them, he added.
And to increase understanding of sometimes “dense and hard to follow” decisions and syllabi, Chemerinsky said the Court should hire a “clear writer” who would boil each decision down to a single paragraph that would be released along with the ruling.
Justices should also strive to make their opinions more concise, he said. There is a “perfect inverse correlation,” Chemerinsky said, between the decrease in the number of cases the Court decides with opinions, and the increase in the length of those opinions.
Other presenters at the conference sought to drew correlations between the justices’ personal experiences and their views on the media.
Conference host and Brigham Young professor RonNell Andersen Jones, formerly a clerk to Justice Sandra Day O’Connor, explored the seeming inconsistency between the Court’s “overwhelmingly press-protective” decisions and its “access-stingy” policies relating to its own work. One explanation, she said, is that the Court can exercise “a colossal amount of control over their operations.”
Boston College Law School professor Mary-Rose Papandrea spoke about the justices’ “quite cautious” approach to new technology in their decisions and in their personal lives. She said “my beloved boss” Justice David Souter, for whom she clerked, recently said – perhaps jokingly – that he had tried to use an iPad, but hid it in a closet because he could not figure out how to turn it off.
By Tony Mauro
The article is an informative summary of Dean Chemerinsky's excellent keynote speech. His thoughtful suggestions deserve careful attention from those who wish for more, not less, access to the Supreme Court. In one way or another, the Supreme Court is trailing, not leading, the rest of the world in making judicial proceedings accessible, especially in the global 21st century. I hope the Chemerinsky speech will be available to the public ASAP, for it should be widely disseminate--yes, well beyond the BYU Law School.
Posted by: Kyu Ho Youm | January 31, 2012 at 03:34 PM
The author ignores the real problem with the Court -- It has become openly political. When justices attend and speak at political fundraisers, and a justice's wife gets more than double his salary for political advocacy on behalf of people with a strong and extreme political agenda that he fails to disclose, then the public would be crazy NOT to question the ethics of the court and the validity of its opinions. It looks like the court is for sale, just like our politicians. The only way to address this is to STOP IT! If a justice and his family cannot live on the salary the justice is paid, then that justice should resign.
Posted by: RG | January 31, 2012 at 12:26 PM
The idea of explaining each refusal is imho off but no one bats a 1.00.
The clear headnotes idea makes sense. This would be particularly helpful when five justices split on the reasoning. The headnotes can get particularly confusing there, including apparently to lower courts.
A summary of concurrences and dissents would be helpful too.
Posted by: Joe | January 31, 2012 at 11:05 AM
The court receives roughly a petition for cert every hour (9000 cases divided over 365 days); I think that as punishment for his inane proposal to explaining each denial, Dean Chemerinsky should be forced to write the denial memo in every case filed until he recants. People familiar with the court's docket, however, will realize that that's cruel and unusual punishment, and he'd break before day's end.
Posted by: Simon | January 30, 2012 at 07:01 PM