Judicial Transparency

First and foremost, I should say that Dahlia Lithwick is a great journalist and legally astute. Her "Jurisprudence" section on Slate.com is always insightful and her clarity and alacrity rivals that of many of the Law.com analysts. So, to the topic at hand. Supreme Court Justice Clarence Thomas has recently given more public speeches to both his alma mater and the general public, claiming that the Supreme Court has enlightened public knowledge of the judicial system through new levels of openness and transparency. There has, however, been a decline in judicial transparency of late, with John Roberts's seizure being glossed over and public oral discussion stagnating. The problem, as Lithwick puts it, is that the public needs a view to things that affect the workings of the court:

Justice Thomas is apparently of the view that there is no educative or public role for the court to play at these sessions. The court is there to render a decision, the way a machine might pop out your Snickers bar, and "debate" and "discussion" only get in the way. That's a rather astonishing assertion about the only part of the Supreme Court's business done in public. Implicit is the notion that the American people—presumably the patient in this scenario—would be somehow bemused and terrified at having the court's work turn into a seminar on what the court's work is.

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.

The rest of the article progresses to claim that the public should be able to see the inner workings of the machine (the Court) so we can rest assured that the belts and bolts are in good repair. It seems to me that, in establishing the Judicial System of the United States, our 55 fathers wanted to steer away from the clandestine and elitist practices of 18th century Parliament. The court system exists to support individual privacy (through upholding the 4th Amendment) not its own privacy.