Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Supreme Court justices announce their rulings from the bench, they summarize them briefly, using words that never become part of the written record. But on Dec. 10, when Chief Justice William Rehnquist summarized the Supreme Court’s landmark opinion in McConnell v. Federal Election Commission, some who heard it asked that he release the text. Rehnquist’s oral summary was far more concise than the Court’s own 19-page written syllabus that was included with the nearly 300-page decision. Ordinarily, such a request would have been rejected out of hand. But that afternoon, without comment, Rehnquist allowed the text to be made public. The release was barely noticed in the rush of the day’s events, and may not seem noteworthy at all in an era when the coin of the realm is information, instantly and widely released. But it was a sign that the Supreme Court, which has long resisted many aspects of the Information Age, is beginning to get more comfortable with greater transparency and openness. There were other illustrations of the trend in 2003. An expanded and increasingly useful Web site. More frequent early release of oral argument audiotapes. An end to the ban on note-taking in public sections of the Court. Briefing its Capitol Hill neighbors on courthouse renovation plans. All these developments of the last year reflect small steps that might have been rejected or not even considered only a decade or so ago. Another example: When the Court announced that it would not hold oral arguments on Oct. 6 because of the Jewish holiday Yom Kippur, it was letting the public in on its reasoning in ways unthinkable in years past. Even the Court’s recent group portrait — not necessitated by the addition of any new member in its ranks — can be viewed as a meaningful sign that the current Court wants to do more than is minimally required to relate to the public. The photo session lasted a brisk three minutes and was hardly an intimate peek at the justices. But it was a gesture — an unspoken acknowledgment that the public beyond its walls has an interest in what goes on inside. “They are sensitive to the criticism of inaccessibility,” says University of Chicago law professor Dennis Hutchinson. Hutchinson points to the Supreme Court’s landmark rulings this year on affirmative action, gay rights, and campaign finance. “The idea that they can just drop these thunderbolts invisibly is wearing thin,” he says. “The times are changing.” Justices Sandra Day O’Connor and Stephen Breyer are two members of the Court who are “trying to put a public face” on the Court’s actions, Hutchinson says. Perhaps not coincidentally, it was O’Connor and Breyer who sat for an open-ended broadcast interview in July on ABC News’ Sunday talk show — another first in 2003. It didn’t all start this year, of course. And the Court’s seeming willingness to concede that it lives in a wider world has not reached full blossom by any means. Camera access to the Court seems as remote a prospect as ever. But the evolutionary process is under way. Consider the history behind Rehnquist’s decision to release his bench announcement, for example. In the mid-1990s, when Justice Ruth Bader Ginsburg began releasing the text of her own oral opinion summaries, Court officials worried about the possible ramifications. Some feared that advocates would cite the summaries in future legal briefs rather than the rulings themselves. But now that Ginsburg’s releases have become routine and problem-free, Rehnquist’s decision to follow suit ruffled no feathers. Similarly, the early release of oral argument audiotapes has become, if not routine, at least unsurprising. The Supreme Court first experimented in 2000 with quick release of the tapes in the two oral arguments that resolved the hotly contested Florida presidential election results. Because of the immediacy, the tapes were widely broadcast and the Court won praise. But after that, Court officials let it be known that no one should expect similar releases any time soon. Indeed, it took more than two years for it to happen again, but this year it happened twice. In the affirmative action cases argued April 1, as well as the four-hour campaign finance argument on Sept. 8, tapes were released without a hitch. The Court’s unheralded decision to allow public spectators to take notes during its proceedings — reversing a decades-long policy against it — has also had a subtle but important impact. Both developments signal that oral arguments are not just for the benefit of the justices, but have a public dimension as well. The justices still appear far from ready to take the next step: allowing cameras inside the Court. They prize their anonymity and traditions too much, for now. But short of camera access, its actions in 2003 have made it easier for the public to glean and record information on its proceedings — both inside and outside the courtroom. Lawyers who practice before the Court are also benefiting from a more public-oriented attitude. Roy Englert Jr. of Robbins, Russell Englert, Orseck & Untereiner says that it has become easier to file briefs and other documents with the Court electronically. When the anthrax scare hit Washington, D.C., two years ago and necessitated off-site screening of materials sent to the Supreme Court, electronic filing was allowed for the first time, and it continues today. “The Court does not exactly encourage the practice,” says Englert, “but it is much more willing to accept electronic filings in addition to the mandatory paper filings than in the past, and that is a good thing from practitioners’ standpoint.” Englert also points to the increasing usefulness of the Court’s official Web site, www.supremecourtus.gov, launched in April 2000. It has detailed docket information, and through a new arrangement with the American Bar Association, the site also includes briefs on the merits filed by both sides in all cases docketed for oral argument. The site also features a special page on the Court’s $122 million modernization project, posting regular updates on the work and its impact on the surrounding neighborhood. In April, Court officials made a presentation on the project to a meeting of the Capitol Hill Restoration Society, a leading community group. At a House subcommittee hearing on the Supreme Court’s budget in April, Justice Anthony Kennedy guessed that the Court’s Web site is visited 70,000 times a day. With a bit of hyperbole that other accessible courts might dispute, Kennedy added, “My conjecture is that we are the most open Court in the world. . . . And we are very, very proud of that.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.