The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.