Open Secret: Why the Supreme Court has Nothing to Fear From the Internet

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time. † Paul E. and the Hon. Joanne F. Alper ’72 Judiciary Studies Professor, Syracuse University College of Law; Professor of Political Science, Syracuse University Maxwell School of Citizenship and Public Affairs; Director, Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University. I thank Carolyn Shapiro and Christopher Schmidt for organizing “The Supreme Court and the Public,” the conference for which this essay was written. I also thank the conference participants for their helpful comments. 1 One way to think about the impact of technology today is to consider the transformation of information. By 2002, the amount of digitally recorded information matched the amount of analog recorded information for the first time in history; five years later the balance had tipped heavily in one direction and digital information accounted for 94% of all the recorded information on the planet. This immense and rapidly growing body of digital data is distinguished by one dominant characteristic: liquidity. “[I]nfinitely reproducible, frictionlessly mobile” digital information flows far more quickly and continuously than its analog ancestor ever could. With this bonanza of highly fluid digital information, it has become much easier to publicize and distribute the work of governmental institutions like the United States Supreme Court. SCOTUSblog, for example, provides comprehensive coverage of the Court’s docket, broadly disseminating a level of detail that was once known only to a small circle of dedicated Court watchers. The Oyez Project maintains a multimedia archive with over 7,000 hours of Court audio, giving the public free access to oral arguments without requiring a journey to the 1 Andy Greenberg, THIS MACHINE KILLS SECRETS: HOW WIKILEAKERS, CYPHERPUNKS, AND HACKTIVISTS AIM TO FREE THE WORLD’S INFORMATION 5 (2012). 2 Id. 3 SCOTUSblog, About Us, available at http://www.scotusblog.com/about/ (last visited November 1, 2012).