The Supreme Court is often unaffectionately referred to as the only remaining 19th-century branch of government. Its members serve for life, its decisions are final, and there’s intense secrecy in everything it does, from internal deliberations to how it decides which cases to take. Even cameras and recording equipment aren’t allowed in the courtroom.
Yet those traditions have been stunningly challenged since the justices announced their anticipated decision on the constitutionality of the Affordable Care Act last Thursday. The court voted 5-4 to uphold the unpopular law. And the stunning bottom line: Chief Justice John Roberts, long considered one of the court’s fierce conservatives, voted with the liberals.
That would normally be the end of story—and the last we’d hear from the court until the fabled first Monday of October, when the justices reconvene for a new term.
Not this time. As the justices head out on vacation and to spend time with their families, the court has been hit with a mysterious series of leaks. Citing two unnamed sources, CBS News’s Jan Crawford reported over the weekend that Roberts initially wanted to overturn the law, but then, near the last minute, switched to the other side, thus keeping it intact.
Then came another report midday Tuesday, when University of Colorado professor Paul Campos, who also has ties to the court, reported on Salon more of the sausage-making process behind the decision. Roberts, wrote Campos, authored both the majority and dissenting opinion. “Most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’s chambers in April and May,” Campos said he was told.
Pundits have wrung their hands over the consequences of the leaks. Any justice who leaked may well be shunned by his or her colleagues. And any clerk who spilled the beans could be facing the end of his or her career.
The court is allowing the people who pay its salary—ordinary Americans—to understand how it works, however messy, antagonistic, and two-faced its players can be.
But among all the head-snapping, there’s something lost. Namely, the shift of the court moving into the present, moving toward the era of 24-hour news, and most important, becoming more transparent, albeit awkwardly. It is allowing the people who pay its salary—ordinary Americans—to understand how it works, however messy, antagonistic, and two-faced its players can be.
Clearly, classified and secret things should stay that way. And clearly, there’s a value on keeping deliberations close to the vest until they’re released, so they’re not impugned by political interests. When James Madison and Thomas Jefferson and their brethren drafted the Constitution and outlined the judiciary, they made it so that the Supreme Court would be above politics and not subject to rapid swings in partisanship.
One can debate whether the current court has met that above-the-fray standard—many have argued that it hasn’t—yet nowhere in Jefferson’s roadmap is the idea that the court should be wholly removed from the people. That position, now, has in effect turned it into a shadowy and secret institution that has virtually no accountability to the citizens on whose behalf it rules.
Proposals have been floated on how to bring the court into modernity. One has been to let reporters inside and videotape sessions. Another has been to include details of deliberations inside final opinions to understand the legal discussions behind a certain case. In January, Rick Perry, as he was being sidelined in the GOP nomination race, repeated a compelling idea that got quickly drowned out: make justice terms 18 years and let every president appoint two, one every other year.
It’s likely Roberts and an internal investigator will get to the bottom of who spoke out of school. But one can hope that in doing so, Roberts might realize how tough it’ll be to keep holding the court back, cloaked in a system that denies TV exists, prohibits any informal public disclosures, and owes nothing to the people who gave its justices their jobs. The 19th century, after all, is only getting further away.