Glimmers of greater openness at secretive Court
WASHINGTON — Reporters who cover the Supreme Court were alerted last month to an unusual event: Justice Stephen Breyer would hold a press briefing Sept. 19 to explain the findings of a committee he had headed that looked into judicial-discipline procedures.
The prospect of a Supreme Court justice’s holding a press conference about anything was rare enough. But when Breyer entered the Court’s press room that afternoon, he brought Chief Justice John Roberts Jr. with him. Roberts participated with Breyer, answering a range of press questions and applauding Breyer’s committee report.
Roberts’ cameo appearance is one of a number of signs that the new chief justice is lifting the veil, ever so slightly, on an institution that has long coveted its privacy and secrecy. And because a chief justice often sets the tone for other justices and the Court staff, a new, somewhat more open climate seems to be unfolding at the nation’s highest court, in contrast to the chillier tone fostered by Roberts’ predecessor and mentor, William Rehnquist.
Whereas Rehnquist held only two or three press conferences in his entire 19-year tenure — carefully controlled events to boost his perennial campaign for judicial pay increases — Roberts has already given two in his first year. Before his September appearance, he held a briefing with reporters in April when he announced his appointment of James Duff as head of the Administrative Office of the U.S. Courts.
In addition, as Roberts began his second year in office last month, the Court also announced that it had made arrangements to release publicly the transcripts of oral arguments within hours after they conclude. Journalists and scholars have long complained about the leisurely pace of the release of oral-argument resources; transcripts had been made available 10 days after the fact, and anyone wanting to hear tapes would generally have to wait months, until after the term ended, before they could be heard at the National Archives.
Starting with the first oral arguments Oct. 3, transcripts were indeed online within hours, enabling reporters to include more precise quotes in their accounts than previously possible — including a comment by Justice Antonin Scalia about Mexicans and tequila that triggered a brief round of critical commentary.
Another sign of a changed tone may be a greater willingness by justices to respond to press inquiries. Justices, including Rehnquist, have long made themselves available to the news media on occasion, especially when they are eager to publicize a book they have just written.
But since Roberts’ arrival on the Court, that access seems to have broadened. The New York Times’ Linda Greenhouse interviewed and quoted by name three sitting justices for an August story on the dearth of female law clerks this term. Justice Samuel Alito Jr. gave a lengthy and candid interview, also in August, to his hometown newspaper, the Newark, N.J., Star-Ledger.
Roberts himself has responded to a range of inquiries, including those from Lisa McElroy, a children’s book author whose biography of Roberts, published in August, contained numerous details about his upbringing and family life.
More recently, Breyer and retired Justice Sandra Day O’Connor took to the airwaves with gusto, teaming up for several interviews with the likes of PBS hosts Charlie Rose and Jim Lehrer. They spoke of their concerns about threats to judicial independence, as a prelude to a conference they were hosting at Georgetown University Law Center to discuss the problem.
Rehnquist, who died in September 2005, was cordial, sometimes friendly, and grudgingly helpful to the press. He gave his blessing to Information Age advances such as a user-friendly Web site that has greatly benefited the press and public alike. But Rehnquist’s starting point was a view that, as he once told a group of reporters, “We don’t need you people” in the same way that the elected branches of government need the news media.
If pressed, Roberts might not totally disagree with Rehnquist’s stance, but he seems more willing to find ways in which the call for greater access and accountability can be met without threatening justices’ privacy and security needs. Before he was a judge, Roberts was a noted appellate lawyer who argued before the high court and was generally accessible to journalists.
But in spite of the new signs of a more public face for the Court, it is clear that an era of glasnost has not fully blossomed.
Routine, quick release of all oral-argument audiotapes, for example, still seems some distance away. Similarly, the justices are still as reluctant as ever to explain their reasons for recusing themselves from a case. And they are still cagey with medical news. In early September, the Court announced that Justice Anthony Kennedy had undergone surgery to implant a stent to clear a blocked blood vessel. It was a candid enough statement, but it noted that the stent was a “revision” of a procedure conducted on Kennedy last November — a health event that was not announced at the time.
And the long-running campaign by access advocates to persuade the justices to allow broadcast coverage of Court proceedings appears no closer to success. Asked about cameras in the Court at a judicial conference in California in July, Roberts said the justices, in their role as stewards of the Court as an institution, were very cautious about making such a change.
“I appreciate very much the argument that the public would benefit greatly from seeing how we do things,” Roberts added. “But we don’t have oral arguments to show people how we function. We have them to learn about a particular case, in a particular way that we think is important.”