Say Cheese

ED: For the most part, Supreme Court justices pride themselves on staying above the partisan fray. But is that possible or even judicious?

Today on the show, we’re looking at moments in American history when the high court has been at the center of partisan politics. We’ll hear about President Jefferson’s failed attempt to impeach Old Bacon Face, Supreme Court Justice Samuel Chase, and how Franklin Roosevelt’s infamous court-packing plan alarmed both conservatives and liberals. We’ll also explore how the Supreme Court came to have the final say in American law, even though it didn’t start out that way.

PETER: But first, we’re going to turn from the court’s media-saturated nomination process to the cloistered atmosphere inside the chambers. News organizations have lobbied for decades to bring cameras into the Supreme Court. But the justices have remained staunchly opposed.

RONNELL ANDERSON JONES: Every time that there is a hearing about the possibility of putting cameras in the Supreme Court, a justice will testify to the effect that we send a signal by not having cameras that we are different.

PETER: That’s legal scholar RonNell Anderson Jones. She’s worked in around the Supreme Court for many years, first as a clerk for Supreme Court Justice Sandra Day O’Connor and later as a lawyer and a journalist. She says that ban profoundly shapes the way the public sees and understands the court.

RONNELL ANDERSON JONES: Poll after poll suggests that more Americans can name a higher number of the seven dwarfs than they can name the nine justices of the Supreme Court.

PETER: Why are the justices dead set against cameras? Jones says it’s partly because of tradition.

RONNELL ANDERSON JONES: A lot of times at the Supreme Court, the answer to the question, why do we do things the way that we do is it is the way it has always been done.

BRIAN: But the justices oppose cameras in the courtroom for more philosophical reasons as well. Banning cameras and other recording devices conveys to the public that justices are not part of the 24-hour news cycle, that they are different from the politicians in Congress and the White House.

RONNELL ANDERSON JONES: Well, almost everything that the Court does is designed to signal that.

BRIAN: Is it true that people can’t even carry ballpoint pens into the Supreme Court?

RONNELL ANDERSON JONES: It was true for a very long time. In the late 1990s, when I was working in my first years at the appellate firm in DC that I worked for, no pens were allowed. And also at the time, the court had agreed to release transcripts of what happened. But it wouldn’t name the speaker from the bench. It would just say the Court, colon, and then some words that a particular justice had said. And so in order to be able to report, even to our own clients, as the junior-most person on the team, I was assigned to justices whose questions I essentially had to memorize so that later we could map that onto the transcript.

They’ve now moved to a place where transcripts are released the same day and where transcripts make reference to the specific questioner. Now audio is released only at the end of argument week, so long after the news cycle is passed or anyone’s interested in using them. So we can see that the Court is super protective of this realm and really very uncomfortable about moving toward additional transparency.

BRIAN: What about when you were on the other side of the bench? You clerked for Justice Sandra Day O’Connor. Were you on board with this, what some might call secrecy, at the time? Did you see some reason or rationale for it?

RONNELL ANDERSON JONES: When I was inside the Court as a law clerk, I could see the tensions that the justices themselves felt. They did not want to become seen as people who were involved in petty politics, that they were a part of the 24-hour news cycle. They didn’t want to be seen as the functional equivalent of a member of Congress or a member of the Executive Branch.

And their suggestion is that it would be better that they be seen as sort of an almost faceless institution. It’s not important who the justices are, because the work that they’re doing is more oracular. They’re in it for the long game. And they’re not making political decisions.

BRIAN: Yet they depend on the other branches to actually implement their decisions.

RONNELL ANDERSON JONES: Sure. The famous line here– it’s from Hamilton, who a law scholar has to always cite this year. This is important. But Hamilton famously stated this, that the judiciary, from the very nature of its functions, would always be what he called the least dangerous branch. Because the executive has the sword, he said. And the legislature has the purse. But the judiciary has nothing.

I think that the justices, in all of their cases, signal to us their otherness, in part because judicial review, the very task that they engage in, the task of assessing the constitutionality of the behaviors of these other two branches, the elected branches of government, this concept of judicial review is a concept that is largely of the Court’s own construction. They, themselves, made it up in the watershed case of Marbury versus Madison.

And that’s a very sensitive, precarious position for the Supreme Court to be in. Because all it has to back that is its own legitimacy. And so they’re very, very keen to be thought of as different, not just some other political branch. That would be very damaging to their goodwill.

BRIAN: And what of the transparency question? Just how far would you go? I get it. You advocate ballpoint pens in the Supreme Court. But how much farther would you go?

RONNELL ANDERSON JONES: Yes. I affirmatively am willing to side on the side of there being pens in the courtroom, yes. I think cameras would be an appropriate move. Our neighbors to the north in Canada have had cameras at their Supreme Court for a number of years. And there are cameras in the courts in all 50 states.

And those experiences and the experiences of other organized democracies across the world suggest that what happens is that there is this initial period of time in which people get used to the presence of cameras. And then they sort of forget that they’re there. And they ignore them. And then the primary audience is the sorts of people who sit around watching C-SPAN. It’s lawyers who want to get better at oral argument and law students and scholars and policy wonks.

And in a few big cases, right, the Brown versus Board of Educations and the Obergefell kinds of cases, maybe we’d all watch. And I think we would get a greater appreciation for how hard the case was, right? A better understanding that the court isn’t just simplistically doing what the headlines suggest, which is that it’s just taking a nose count of who would like gay people to be able to get married and who wouldn’t, but rather engaging in really complex legal inquiries about constitutional precedent and the role of the Constitution in our lives.

Now occasionally, what might happen, I think, if there were cameras, is that one of the justices might do something goofy or make a gaffe. And that would show up on the nightly comedy shows or it would go viral online. And the justices have indicated repeatedly that they are really concerned about that.

BRIAN: OK, RonNell. I’m going to put you on the witness stand now. Is the court really more insulated from politics than the other branches of government? Or do they just do a better job of hiding that because of these practices that you just talked about?

RONNELL ANDERSON JONES:  I actually think they are more insulated from politics than the other branches 90% of the time. And that’s the real tragedy of the lack of transparency at the Court. Because in my experience as a law clerk and certainly as a follower of the Court and a commentator on the Court in more recent years, is that a large number of cases at the Supreme Court are decided 9-0 or 7 to 2 or 6 to 3 on non-ideological divisions.

Now there are a small number of hot-button cases that are 5 to 4 and that are ideologically charged and that are divided on lines that probably line up with the appointing president of the individual justices. And those are the ones that get all the headlines.

But my sense is that if people were given the chance to watch those cases play out in detail, they would see that the divisions that the justices have are differences about how we think about our Constitution and how we operate in a constitutional democracy. And they would appreciate that even though there is an ideological undercurrent, it still isn’t the same as the Court making bald political decisions the way that we expect our elected officials to do.

BRIAN: RonNell Anderson Jones is a professor of law at the University of Utah.

PETER: Earlier, we were joined by NPR Legal Affairs Correspondent Nina Totenberg. We’ve also heard from Jeffrey Rosen, President and CEO of the National Constitution Center. His new book is Louis D. Brandeis, American Prophet.