A TV Appearance by Two Supreme Court Justices Indicates How Much the Court Continues to Value Image Control

By MICHAEL C. DORF

Wednesday, Jul. 09, 2003

Over the Fourth of July weekend, Supreme Court Justices Sandra Day O'Connor and Stephen Breyer appeared together on the ABC News show "This Week". Justices rarely grant media interviews, and so the event--a pre-recorded discussion with George Stephanopoulos--generated considerable interest.

As they and other Justices have done in the past, O'Connor and Breyer painted a dignified picture of the Court's inner workings. For instance, both described the sometimes heated dissents of colleagues like Justice Antonin Scalia as mere "rhetoric" that does not interfere with the Justices' ability to work together as professionals.

In granting the public a glimpse inside the marble temple that is the Supreme Court building, O'Connor and Breyer performed a valuable public service. Yet the substance of their statements only underscored the Justices' disturbing wish to control the conversation about their performance.

Justice O'Connor's Odd Answer About Her Anticipated Retirement

In the weeks leading up to the end of the Court's regular term last month, speculation ran rampant that Justice O'Connor (who is 73 years old), Chief Justice William Rehnquist (who is 78), or Justice John Paul Stevens (who is 83) would retire. Indeed, some speculated that several retirement announcements might occur at once.

Rehnquist and O'Connor were both appointed by Republican Presidents, and both are generally conservative. Thus, observers have widely assumed each would want to step down during a Republican administration so that a like-minded successor could be named. In theory, Rehnquist or O'Connor could wait another year and still retire during the Bush Presidency, but that has seemed a risky option.

A retirement in June of 2004 would inevitably entangle the President's choice for a successor (or successors) in the politics of the Presidential election. Senate Democrats hopeful of recapturing the White House might delay confirmation until November, leaving the possibility that the Court would be at less than full strength for much of the 2004-05 Term.

Moreover, according to a news story that ran in Newsweek and The Wall Street Journal, on election night 2000, O'Connor's husband had expressed concern that Al Gore appeared headed to a victory that would require the Justice to wait at least another four years before retiring. In the ABC News interview, Justice O'Connor emphatically denied the veracity of this story, but of course, the interview only aired after the Court adjourned for the summer on June 26.

Before the term came to an end, conventional wisdom had held that O'Connor--and perhaps Rehnquist as well--would retire while George W. Bush was in the White House. Thus, as the term was about to conclude, all signs pointed to at least one imminent retirement announcement.

Then nothing happened. Well, not quite nothing. Rehnquist, who in his younger days was considered something of a jokester, told observers in the courtroom that there was a retirement. As the crowd gasped, the Chief Justice playfully revealed that Court librarian Shelley Dowling was stepping down.

But fun and games aside, the Term appeared to end with the Court's roster unchanged. I say "appeared" because the Term won't officially end until the next one begins in October, and before that the Court will hold a special September session to consider the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). Because the Court remains closely divided on how to judge campaign finance regulations, it is possible that Rehnquist or O'Connor plans to stay on the Court until the BCRA case is decided, and then promptly retire.

Possible--but not likely. In the ABC News interview, Stephanopoulos asked O'Connor whether her failure to announce her retirement when the Court adjourned for the summer signaled that she would serve for at least one more full term. She replied: "Well, I assume so."

This cagey answer prompted confused reactions. For example, the Associated Press story that ran the same day as the interview and that was posted on the ABC News website said O'Connor "dodged questions" about her possible retirement. In contrast, by the next day, the AP story characterized O'Connor's response to Stephanopoulos as "brushing aside" retirement speculation.

Perhaps O'Connor has not decided when she plans to retire. Or perhaps she has made up her mind but does not believe it appropriate to reveal the answer until the moment actually arrives. Either way, one senses that her answer to Stephanopoulos was deliberately ambiguous. That leaves one to wonder: Why do she and the other Justices toy with the public in this way?

Justice Breyer's Unconvincing Comments About Televising Oral Arguments

The answer, I fear, is rooted in an almost reflexive instinct on the part of the Justices to try to control their public image and the broader conversation about the Court.

Consider, for example, Justice Breyer's response to the question whether Supreme Court oral arguments should be broadcast live on television. Noting that the Court had broken tradition to release same-day audiotapes of oral arguments in Bush v. Gore and the University of Michigan affirmative action cases, Stephanopoulos asked whether the country wouldn't benefit from being able to watch oral arguments on television.

Breyer replied that if the Supreme Court were to allow cameras in its courtroom, then other courts would fall under irresistible pressure to do the same. And in that event, he thought, harm would be done in cases in which unwanted notoriety would befall people unlucky enough to be involved in legal proceedings.

This worry seems misplaced. Many trial court proceedings are already televised, and the lower courts--which are way ahead of the Supreme Court on this issue--have developed extensive guidelines on when to permit, and when to exclude, cameras.

Breyer had a second response as well. He worried that televised oral arguments would give the public a distorted picture of how the Supreme Court functions because oral arguments comprise only "two percent of our decision-making process."

Yet this response is even worse than the first. Let's assume that Breyer is right about the two percent figure. Under the current system--in which Americans learn about what transpires at oral argument from newspaper accounts that rarely take the form of full transcripts--the public has access to less than two percent of the Court's decision-making process. Permitting television cameras in the courtroom could only increase public understanding of the Court's business, not decrease it.

In any event, all oral argument transcripts and tapes do eventually become available to anyone with the training or ingenuity to find them on the web. Of course, Justice Breyer knows that the sort of person who takes the time to read an oral argument transcript or listen to a streaming audio recording is likely to read the Court's opinions as well. His worry appears to be that the general lay public will watch only the oral argument and not read the Court's written work, thus getting a distorted picture of the Court.

That's a possibility, but a far-fetched one. How likely is it that the sort of person who would watch a televised Supreme Court oral argument--or even an excerpt of it on the evening news--but doesn't read the Court's opinions, will be rendered less knowledgeable about the Court by virtue of the televised argument or snippet?

The Justices' Urge to Present Themselves on Their Own Terms

In the end, the real nub of the Justices' opposition to television coverage of oral arguments (and the handing down of decisions) stems from their desire to present themselves on their own terms.

Indeed, Justice O'Connor as much as said so in the ABC News interview. She claimed that the Supreme Court sits atop "the most open branch of" government because the Justices "fully explain everything [they're] thinking and doing in written opinions for the world to see. That doesn't happen in the other branches of government."

That's an admirable sentiment, but it's hardly an uncontroversial one. Indeed, for over a century, many distinguished legal scholars have argued that courts--including the Supreme Court--decide cases according to their gut instincts, philosophical views and even political biases, and then write opinions that amount to mere after-the-fact rationalizations. According to these scholars, far from fully explaining everything the Justices are thinking and doing, the written opinions merely veil the Court's true activities.

Furthermore, there is a fairly rich political science literature that portrays the Justices as simply voting their policy preferences. That literature--strikingly--has concluded that this "attitudinal model" better explains the pattern of results than anything in the Justices' written opinions does.

In my estimation, the critical legal scholars and political scientists who deny the importance of the Justices' stated reasons for their rulings overstate their case. Yes, individual temperament and philosophy make a difference, but so does law, viewed as a set of guiding (if not fully determinate) principles. The real work for a sophisticated Court watcher is in figuring out how individual attitudes and legal principles interact.

Yet if we must judge the Court solely by its written output, that work will be nearly impossible to conduct. How can we study the interaction between the decision-making process and the self-reported results of that process if we can only see the latter?

If the Justices want the world to take their opinions at face value, they must open the Court's processes still further, so that a candid assessment can occur. By appearing on national television, Justices O'Connor and Breyer have taken a step in the right direction. But by continuing to espouse the value of a Court that works best behind closed doors, they have illustrated that the road to a fully open Court remains a long one.


Michael C. Dorf is Professor of Law at Columbia University.

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