As the United States Supreme Court gears up for its new term this October, Erwin Chemerinsky, a notable commentator on judiciary affairs, has rekindled the call for greater transparency within the nation’s highest court. In a recent article for SCOTUSblog, Chemerinsky argues that transparency is not only a bipartisan concern but a necessary step to demystify the often opaque workings of the court.
The call for transparency is multifaceted. A key suggestion is the broadcasting of opinion announcements. After the Supreme Court’s decisions are made, they are typically announced from the bench by the justice who authored the majority opinion. However, there is no live broadcasting. Chemerinsky points out that broadcasting these announcements could build public trust without compromising confidentiality.
The veteran legal scholar also advocates for televising oral arguments, a point that continues to polarize the justices. Currently, live audio of oral arguments is available, a practice adopted during and after the COVID-19 pandemic. Yet Chemerinsky argues that transparency could be significantly improved if these proceedings were televised. Many argue that televising could alter the conduct of the justices and lawyers, although federal appellate courts broadcast without incident. Chemerinsky believes this step might even enhance the court’s legitimacy as the public witnesses firsthand the intricacies of deliberations.
Chemerinsky emphasizes that the court should offer more detailed justifications for justices’ recusals from cases, exemplified by Justice Amy Coney Barrett’s unexplained recusal in Oklahoma Statewide Charter School Board v. Drummond. Furthermore, disclosing votes in tied cases, and votes on petitions for certiorari, would also contribute to a more transparent judicial process.
Additionally, there is a proposal to pre-announce which decisions will be released on specific days, a practice already adopted by some state courts. This approach would aid the media in planning coverage and reduce suspense and stress among litigants awaiting decisions.
An intriguing suggestion is providing a plain English summary of each decision, separate from the often complex legalese of the court’s official syllabus. Such summaries could aid the public’s understanding of rulings, fostering a more informed citizenry.
While these propositions may seem straightforward, they represent significant shifts in the longstanding traditions of the Supreme Court. Yet, Chemerinsky argues that the evolving nature of the court’s recent alterations in conducting oral arguments demonstrates that more profound changes are both possible and necessary for enhanced public accountability.