Supreme Court

If a Justice Defends the Court But Nobody Can Hear It, Does It Make a Sound?

Justices complain about how their work is misrepresented, but then do not make the text or audio of their remarks available to the public.

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In recent weeks, several Supreme Court justices have given speeches lamenting the way many journalists, commentators, and policymakers characterize the Court's work. One of the themes across these speeches has been the concern that the justices' actions are misrepresented and characterized as more partisan or political than they actually are. As these speeches were all public, one would think the justices were hoping that their messages would reach the people directly, avoiding the distortions that may result from filtering the justices' words or deeds through press accounts and commentary.  Odd, then, that the justices make so little effort to make the content of their speeches publicly available.

Yesterday, for instance, Justice Samuel Alito gave a speech at Notre Dame University. It was originally slated to be a closed event. Perhaps in response to public pressure, however, the speech was ultimately live-streamed, facilitating greater media coverage and real-time critical commentary on Twitter. The filtering problem remains, however. It is much easier to find snarky critiques of Justice Alito's remarks than the remarks themselves, as neither the text nor a video has been made available to those who did not watch the event live. Most Americans who hear about Justice Alito's speech will hear about it as filtered through the same media sources that Justice Alito believes misrepresent the Court in the first place.

It need not be this way. In order to prevent their words from being misinterpreted or misrepresented, the justices could make their remarks available to the public. Indeed, the Supreme Court website even has a page for speeches delivered by the justices. Few of the justices post their remarks there, however. Indeed, no justice has posted a prepared version or transcript of any of their speeches since 2019. The only sitting justice with a speech on the page is Justice Stephen Breyer, but his last entry is 2009.

As it happens, I share the concern expressed by many of the justices that popular political commentary often distorts or misrepresent the Court's work. The best response to this, however, is greater transparency. Live-streaming oral argument audio has been a benefit to the Court, as it has allowed more people to hear the justices wrestle with the substance of cases in real time. Making the text or audio of justices' public remarks would serve a similar purpose, as it would allow those interested to see or hear the justices' words for themselves. If justices want to defend the Court's work in public–and they want those defenses to be effective–they would be advised not to shroud their remarks in secrecy.

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  1. If only the court had the power to rule on the constitutionality of laws allowing the suppression of speech.

    1. If it helps, the Court already ruled several times that copyright laws do not violate the first amendment.

      https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-8/copyright-and-the-first-amendment

      1. When Alito’s speech was live-streamed anyone could have recorded it. Do we know if it was copyrighted? Did a process of registering to see it involve an enforceable TOS? If someone surreptitiously gave it to a news organization and they posted it, they would they not be liable for posting it under the Pentagon Papers precedent, or would the fact that the copyright holder was not a public entity overcome that?

        My impression is that once this sort of thing gets out it is impossible to prevent repostings, so though a particular url may become invalid a video of wide or dedicated interest will be available somewhere virtually always. So the asserted unavailability of Justice speeches is puzzling.

        But I looked for Thomas’ recent speech and couldn’t find it.

        1. Why does any of that matter? Surely he holds the copyright in the words he’s written?

    2. If only the court had the power to rule on the constitutionality of laws allowing the government’s suppression of speech.

      FTFY

  2. Agree. No one is impressed with SC justices whining about they are so misunderstood. Either open up or stop complaining.

    1. That won’t help as long as speeches like that of ACB are merely unconvincing exercises in gaslighting us.

  3. Minor error:
    Breyer’s last listed speech was 2011, not 2009.

    Stephen Breyer Holocaust Memorial Museum National Days of Remembrance, Washington, DC, May 17, 2011

  4. From SCOTUSblog:
    “Alito also flatly denied the charge that the court has increasingly used the shadow docket to issue sweeping decisions that change the law in significant ways. He admitted that granting or denying applications for emergency relief has “important consequences.” But he said, “The suggestion that these emergency rulings definitively decide important issues is false.” Decisions for emergency relief, he continued, do not make precedent on the underlying issue. But shadow docket decisions do become precedent in related cases.”
    I don’t see how the last three sentences fit together. Alito seems to be obfuscating — the Circuit Courts seem to think the decisions make precedent.

    1. Perhaps you are reading “related cases” too widely. Maybe A vs B is “related” to B vs A, but X vs Y is not “related” to B vs A even if the issues are similar. And maybe Alito is giving muffled (and probably ineffective and pointless) instruction to the Circuits on this point.

  5. Justice Alito is doing his best, trying to keep a very weak hand in the game for as long as he can.

    1. @Kookland: You have this weird trick of posting links to music videos that, if one doesn’t follow them, give the appearance of footnoting your attempted snark. Like almost all your posts this practice is misleading, uninformative, and a waste of our attention.

      1. Don’t like music? That fits the profile of a disaffected, intolerant, sour-pussed, obsolete, right-wing incel.

  6. I would go further and say they should be willing to discuss their reasoning on cases.

    Otherwise they are just professing their innocence.

    1. Don’t the written decisions do that?

      I agree with your premise. If there’s a way to get more color beyond the decision itself I’m all for it. With lifetime appointments there’s absolutely nothing to lose by being transparent.

      1. By “discuss” I think he meant something more interactive.

    2. No, because that would simply undermine their incentive to write good judgments. They should be willing to discuss their overall philosophy about the law and judging, but let their judgments speak for themselves.

  7. “It is much easier to find snarky critiques of Justice Alito’s remarks than the remarks themselves, as neither the text nor a video has been made available to those who did not watch the event live.”

    So, who makes the decision to not make the video of the livestream available after it has finished?

    I was watching the livestream, and the youtube video id (url below) was marked private mere seconds after the livestream ended. Someone had to take deliberate action to kill youtube’s default of archiving and leaving public the livestream video. It is now marked as private. It could instantly be made public again with almost no effort if whoever controls the Kellogg Institute’s youtube channel just made the video public again.

    https://www.youtube.com/watch?v=jIGM5OaHaVc

    1. So, who makes the decision to not make the video of the livestream available after it has finished?

      Surely this was/is under Alito’s control, as a condition of his giving the speech and as an inducement for him to consider giving future one.

      1. … Aargh! “future ones.” Reason’s non-functional commenting software strikes again.

        Did you have to register in order to watch the stream? I’m curious if you were prohibited from recording and uploading it.

  8. This might be a good time to remind people that a majority of the court was appointed by a president who came into office after losing the popular vote.

    And confirmed by a process remarkably similar to Calvinball, called Mitchball.

    Is it any wonder why the justices are concerned about the court’s legitimacy in the eyes of the public?

    1. Although Chief Justice Roberts (much to the chagrin of a certain Law Professor who owns a single necktie) and Justice Alito were appointed by George W. Bush, he did so in the term where he was in office after winning the popular vote.

    2. Well, Clem, it turns out that the ‘popular vote’ doesn’t matter, because no one actually votes for or against a presidential candidate.
      By design.
      So we will have to mark your post a lacking context.

    3. “…concerned about the court’s legitimacy in the eyes of the public?”

      The public judges the court on whether their decisions match their individual policy preference. I’d guess the percentage of the population who can name any justice other than Kavanaugh is miniscule, let alone knowing by whom they were nominated.

    4. Actually, a full two-thirds of the justices were appointed by presidents after failing to win a majority of the popular vote.

    5. That third of the court was appointed by the duly elected president and confirmed according to the constitutionally described process.

      The fact that you’re not a fan of the people involved (I’m not keen on Trump either) doesn’t affect that legitimacy.

    6. What popular vote? There’s no popular vote for President in the United States. Are you thinking of a different Supreme Court?

    7. Is it any wonder why the justices are concerned about the court’s legitimacy in the eyes of the public?

      They were all confirmed by Senators representing a supermajority of the popular vote, so your observation is trivia unrelated to why SCOTUS is in deservedly bad odor.

  9. When the Supreme Court decides a case, it almost always issues an opinion explaining why. Sometimes those opinions reflect a lot of salesmanship. The first Supreme Court decision I remember is Brown v. Board, when I was 11 years old, which certainly tried hard to sell the product. Successfully, eventually. What some folks seem to be missing is salesmanship about the “role of the Court”. I really doubt that publishing speeches by Justices about that subject will change many minds and hearts, but, sure, they should be made available to those who want to read them. I vote Yea.

    1. The request is for video, not transcripts. But transcripts would be a plus.

  10. I mean, there’s a huge (unfounded, IMO) assumption there that people actually want to take the time to go read the actual remarks in detail. By and large, no. They want to be told what to think about them, to confirm their presupposition.

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