Of the three branches of U.S. government, the Judicial is the most secretive. Judges appear in public for trials and then disappear to cogitate in solitude before rendering their verdicts — which often appear suddenly, as if by divine intervention. But what if courts had to act transparently — the way other parts of government do — and let us watch them deliberate?
That is the question chief justice Shirley Abrahamson of the Wisconsin Supreme Court is asking. Last week she proposed a series of reforms for her court. Among them: requiring justices to hold their deliberations about which cases to take and how to decide them in the open. That could mean conducting deliberations in a place where the public could watch or broadcasting their discussions on television or the Internet.
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It’s a bold idea: while transparency rules are common for legislatures and administrative agencies (all 50 states have some kind of open-meetings law), courts operate far more secretly. Critics are already insisting that greater openness would interfere with important aspects of how judges do their work. But there is a strong case to be made that such openness would improve the justice system.
There is an unusual backstory to Abrahamson’s proposal. Earlier this year a member of her court, justice David Prosser, was accused of choking one of his female colleagues during a closed-door meeting in June. Prosser, a conservative who had come within about 7,300 votes of being recalled in April, admitted putting his hands on justice Ann Walsh Bradley’s neck, but he said he was acting defensively.
That encounter was merely the most dramatic manifestation of the tension that currently grips the court. Wisconsin’s justices are sharply divided on ideological lines, with conservatives holding a 4-3 majority, and they have feuded on several issues, most notably the legality of Republican Governor Scott Walker’s attempt in March to strip public employees of collective-bargaining rights. Wisconsin is one of several states that hold elections for their supreme court justices, and recent contests (including Prosser’s recall) have been heavily politicized slugfests, with both sides receiving funding from well-financed special interests.
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With tensions running high and the court’s image badly sullied, Abrahamson’s proposed reforms could be a way to clear the air and change the dynamic. “Transparency will help assure the public that we are working in a collegial fashion and doing the job we were elected to do,” the chief justice said.
Even in states without Wisconsin’s unusual judicial tensions, transparency would have some clear advantages. It would strip away some of the mystery surrounding the highest courts in the land. The public could watch the justices’ reasoning at work, and see how they think about important legal questions. Some of this information is available in a court’s written decisions, but the fact is, few citizens read these documents. If deliberations were open, the public could follow their reasoning far more easily.
Abrahamson’s ideas are already attracting support in her state. In an editorial, the Wisconsin State Journal said that greater transparency “sounds like a good idea” and could help repair the damage from the choking incident, which it said made the justices look more like “the Three Stooges” than jurists.
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Not everyone agrees that more openness makes sense. Critics argue that Abrahamson’s proposal would prevent justices from talking frankly among themselves. They also say it could interfere with the off-the-record negotiations that can be vital to crafting a majority decision. When Brown v. Board of Education, the landmark U.S. Supreme Court case that desegregated public schools, was first argued in 1952, the court was badly divided; at least two judges, including Chief Justice Fred Vinson, were in favor of rejecting the desegregationists’ challenge completely. But Vinson died before the court could hear a second argument, and thanks to some impressive cajoling by his replacement, Chief Justice Earl Warren, the court came together for a unanimous ruling. If its deliberations had been public, the nation might have seen how divided the Justices originally had been — and that knowledge could have emboldened defenders of segregation.
The Abrahamson proposal would take the Wisconsin Supreme Court into uncharted waters. No other state supreme court has open deliberations. (Nor, for the record, does the U.S. Supreme Court, a body that’s unlikely to ever adopt such a proposal: it still rejects the idea of allowing cameras at oral arguments, the most public of court proceedings.) But if Wisconsin leads the way, other states could decide to follow.
Given the great power that judges have — after the 2000 election, remember, the U.S. Supreme Court picked a President — a strong case can be made that the public has a right to keep a close eye on how they do their jobs. At the very least, Abrahamson’s transparency initiative requires more thought and careful weighing of the pros and cons. But at its heart, it proceeds from the famous insight of Louis Brandeis, one of America’s greatest Supreme Court Justices: “Sunlight is said to be the best of disinfectants.”