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Open BooksWhy Supreme Court justices' speeches are less important than oral arguments.

By Dahlia Lithwick
Posted Friday, Nov. 30, 2007, at 6:49 PM ET

(Continued from page 1)

I don't want to read too much into a few sentences. It would, as always, be easier if Thomas and the rest of the justices were willing to make transcripts of their public remarks public. But no transcript of Thomas' remarks is available at the court's public information office. Based on the news accounts, one has to wonder about Justice Thomas' ideas of judicial openness when within months of releasing the most searingly personal and angry memoir ever penned by a living justice, he claims that Americans are too fragile or clueless to witness (grosssss … ) Supreme Court justices thinking out loud about the law.

At the risk of straining the justice's inapt metaphor, the only thing more terrifying than hearing a bunch of doctors debating which procedures they'll be using to pop out my gallbladder would be hearing one of them spewing poison about "angry white women" and "left-wing zealots" just as the chloroform was starting to flow.

Tony Mauro makes a related point today in this post at Law.com. Almost four months after collapsing from a seizure, Chief Justice John Roberts still refuses to tell the American people whether or not he has epilepsy and what drugs he may or may not be taking. Mauro quotes University of Missouri political scientist David Atkinson, who says, "The public is entitled to know what medications he is taking. It affects everyone. Because of the decisions they are making, the health of justices is not of small consequence." There is a line between respecting a judge's privacy on personal matters and the public's need to know whether those personal matters will affect his performance, but that line should be drawn by someone other than the judge in question. Roberts has presided over an era in which the court has thankfully opened itself up to greater public scrutiny, with more television appearances and major newspaper interviews. But wouldn't many of us trade some of those judicial speeches and on-camera chats for the opportunity to hear same-day broadcasts of oral arguments more than once a year? By keeping the court's public work mystified and secret, the justices, like Thomas, denigrate how important the actual deciding of cases is to the American people.

Roberts and Thomas, to different degrees, seem to be fundamentally misunderstanding the sort of transparency Americans need from their courts. Transparency, to them, means that judges give more speeches, do more television, and speak more personally than they have ever done before. But that isn't nearly as important as laying out the real substance of what they do—whether it's thinking through cases at oral argument or reassuring the public that their illness does not affect their job performance. On what matters most to many of us, the court is now somehow more "private" than ever.

It's a disturbing new form of reality-TV Supreme Court we're suddenly being shown, personal sufferings and rivalries laid bare, while the institution itself remains opaque and mystifying. Just last year, Roberts told Jeff Rosen that the key to re-establishing the waning credibility of the Supreme Court would be encouraging the justices to subordinate "the personalization of judicial politics" to the good of the institution. In Roberts' view, that meant functioning more like a team, or perhaps even like a machine. But is that what we're getting?

Transparency means being able to see a machine's inner workings, so you can assure yourself that the gears and belts are in good repair. Airing the loves, hates, and childhood narratives of its operators, on its own, isn't so much what we the people want from our courts, even when it's decidedly what People magazine wants to publish.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Clarence Thomas by Saul Loeb/AFP/Getty Images.
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