The Supreme Court under a cloud

Future of court imperiled by leak and prospect of televised hearings

On May 2, the first draft of a Supreme Court opinion which would over turn Roe v. Wade leaked to Politico, an extraordinary breach that punctured the shroud of secrecy ordinarily surrounding the court. This secrecy has also been attacked by those

Much attention has rightfully been paid to the substance and implications of the opinion. If adopted, the draft by conservative Justice Samuel Alito would upend nearly 50 years of Supreme Court precedent enshrining abortion access as a constitutional right. The blatant partisanship and radicalism of the opinion alone threaten the durability and integrity of the court.

However, there is also a subtler, quieter, threat posed by this type of leaking and the broader push for more transparency: accelerating the transformation of the Supreme Court from a serious deliberative body into a political theater swayed by public sentiment, informed — or misinformed — by the media.

This call for openness is most often in the form of advocacy for cameras in the Supreme Court. Newly-confirmed Justice Ketanji Brown-Jackson was asked about her n on cameras in tehview on cameras in the court; like many judicial nominees before her, she equivocated.

Unlike Congress, the Supreme Court does not televise its proceedings. There are audio recordings of “We should endeavor to oral arguments, but the judges also conpreserve the institution’s in- sider written briefs tegrity — preemptive leakand confer with each other. ing, incendiary coverage, and televised spectacles One need only look across town to the House and Senwould further weaken it.” ate to see the deleterious effect of televising proceedings, with political grandstanding for 30-second clips on the evening news. Unfortunately, performative outrage will draw more publicity than dry legislative hearings.

Of course, there are also certain benefits to having cameras in Congress: the potential to draw attention to certain issues and at least a degree of transparency.

But the Supreme Court is a different institution that would not benefit from this sort of transparency. It does not — or should not — operate as a forum for getting attention, scoring political points, or fundraising.

Rather, the nine justices are tasked with interpreting the Constitution based on the text and the cases before them.

This is a formidable task, and what they decide determines our rights and civil liberties. Thus, this sort of explosive leaking in the middle of the Supreme Court’s decision-making risks tainting the court’s judicial process with public pressure that could influence the final opinion. The historic discretion of the court notionally allows it to operate outside of the political fray. Judges wear black robes to symbolize that justice is blind; only the law should matter. The Supreme Court has been moving further away from this ideal toward cynical partisanship, as exemplified by this recent draft opinion. The effort should be to preserve the institution’s integrity — preemptive leaking and televised spectacles would further weaken it.