Sen. Arlen Specter, D-Pa., took to the floor of the Senate on Monday to talk about the vacancy on the Supreme Court, and while he was at it, one of his favorite Supreme Court topics: camera access.
"I believe Congress has the authority, should it choose to do so, to direct the Supreme Court to permit its proceedings to be televised," Specter said.
"If the public had access to what was going on in the Supreme Court," Specter said, "it seems to me there would be a clamor to have more openness, more transparency, and greater public appreciation of the fact that the Supreme Court is a battleground."
Congress is a highly deliberative body. Four-hundred thirty-five Representatives and one-hundred Senators, their personal staffs, the Congressional services, the public and, yes, even lobbyists for corporations and non-profits look over each and every bill dozens of times before it is passed. Dense parliamentary rules in the House and the Senate ensure that the bills receive — or at least should receive — thorough review as they move from introduction, to committee, to floor, to conference, and then back to the floor. It’s a challenge even to understand, much less master, the rules.
The Executive is similarly embedded with multiple degrees of deliberation and review at every level. Before agencies change their policies, they go through extensive rulemaking, including a public notice-and-comment period — sometimes more than once — to ensure that scholars, activists, lobbyists and the public at large can review, consider, comment on and react to the proposed changes. Take a look at the thousands of proposed regulations just waiting for your comments.
Not so with the Supreme Court. It’s a black box: after filing the lower court’s opinion, an opening brief, a response brief, a reply brief, and then conducting an hour of argument total, the supreme law of the land comes out, fully formed. It cannot be rescinded. It cannot be simplified or clarified, not even when, like in Washington v. Davis, the Supreme Court laid down an "objective and quite workable" rule that was literally interpreted differently in every state in the union.
At best, flawed rulings can only be supplemented through an opinion in a years or decades later "case or controversy."
Why wait until the damage has been done — why not invite public comment before the opinions become law?
Just how powerful is the public comment process?
Consider epidemiology. As Jennifer Gardy, the co-head of British Columbia Centre for Disease Control explains in this fascinating talk (via), when the SARS coronavirus pandemic began in 2003, it took 19 days just to sequence the virus’s genome. This year, after the H1N1/09 influence was declared a pandemic, by the 19th day dozens of virus genomes had been sequenced, the origin and spread of the virus had been established, and a vaccine was already in the works. (Read more from Gardy here; see late-breaking H1N1 research in progress at the Public Library of Science’s Currents.)
Indeed, open access / public commenting is how most of academia functions these days. Draft social science and law journal articles are posted on SSRN prior to publication. Draft papers on physics, mathematics, and other complex quantitative papers are posted on arXiv.org.
It’s hard to think of any field of government or scholarship today in which work not subject to public scrutiny is considered worthy of use by others; in cryptography, for example, any encryption method which doesn’t make its source code available for public scrutiny, like even the government’s own encryption standard is available, is presumed worthless.
Individual collegiate evaluation worked for Henry Oldenburg when he was peer-reviewing the Philosophical Transactions of the Royal Society back in 1665. It doesn’t work so well when nine Justices are supposed to decide cases of national importance involving hundreds of thousands of pages of briefs, precedent, statutes, regulations, and appellate records at a rate of one opinion issued every four or five days, every word of which will be pondered, analyzed, scrutinized, and, unfortunately, misinterpreted by courts every day.