The Supreme Court has become a political body.

We should start treating it that way.

I didn’t know that it can be hard for reporters to see or even hear arguments at the Supreme Court until I read about it in Adam Serwer’s excellent piece on Justice “I’ll have my cake and eat it too” Alito this week in The Atlantic.  Serwer was complaining – with reason and accuracy – that most mainstream Supreme Court reporters are excessively “decorous and proper and deferential to justices” in the way they cover the court.  Serwer is not one of the two dozen reporters and three courtroom artists who hold one of the coveted “hard passes” that entitle them to regular access to the court, and he observed that as one of journalistic plebes covering the Supreme Court, he was relegated to the fourth row of the press section. 

It was there, inside the very room where the court meets to hold its hearings on such pressing matters as voting rights, campaign finance, and abortion that Serwer had difficulty even hearing the arguments made by lawyers and the questions and comments of the justices themselves.  When a reporter assigned to cover the court can’t hear its arguments, the time has come to change what another reporter, Jay Willis, has called the “tiny, clubby, insular” coverage of the court and the way the public gets to hear what happens there, not to mention make a few changes to the court itself.

What Willis called “the persistent refrain that justices ‘do law, not politics’” has been under fire since Justices Samuel Alito and Amy Comey Barrett made what were seen as political speeches defending the apolitical nature of the court.  Barrett gave her speech at something called the “McConnell Center” at the University of Louisville.  The center is of course named after Minority Leader Mitch McConnell of Kentucky, who was Majority Leader of the Senate last year when it rushed through Barrett’s confirmation just before the election because McConnell knew there was a good chance Republicans would lose control of the Senate, which indeed happened in a run-off election held in Georgia in January of this year.  McConnell was of course also the Majority Leader who refused President Obama’s nominee Merrick Garland even a hearing much less a vote after he was appointed in 2016, thus allowing newly-elected President Donald Trump to appoint conservative Neil Gorsuch in his place.

Alito, one of seven Catholics on the court, spoke at the University of Notre Dame, a school run by the Catholic Church.  Serwer noted in his article that Alito’s office prohibited media outlets from filming, recording, broadcasting or even transcribing the text of his speech.  Barrett’s speech at the McConnell Center was not filmed or recorded either, and I could not find a transcript of what she said anywhere.

Both Barrett and Alito complained at length about the decisions of the court, and the court itself, being called “political.”  “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett told her audience, which included at least two partisan hacks:  McConnell, and Kentucky Secretary of State Michael Adams.  The non-partisan Brennan Center for Justice called Alito’s Notre Dame performance “an unusually political speech for a justice at a time of growing scrutiny about the Supreme Court’s public legitimacy.”  Serwer skewered the conservative justice with this: “Alito’s speech perfectly encapsulated the new imperious attitude of the Court’s right-wing majority, which wants to act politically without being seen as political, and expects the public to silently acquiesce to its every directive without scrutiny, criticism, or protest.”

When speeches made by Supreme Court justices are effectively made in secret, away from the prying eyes and ears of the public, you know something is seriously wrong on First Street in Washington D.C.  The court, with its six arch-conservative justices appointed by Republican presidents, has become more lopsided than any time in the last 50 to 60 years or more.  Its most recent refusal to issue a stay of Texas’ Neanderthal abortion law, not to mention its evisceration of what was left of the Voting Rights Act, is all you need to know about the intentions of the conservative majority on the court when it comes to the contentious issues of the day. 

There’s not much that can be done with the Supreme Court.  Most legal experts agree that Congress has the power under Article III of the Constitution to increase the size of the court, although the wording of the article, like many in that document is vague on its powers.  “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”  But it is another clause of the Constitution which experts seem to agree gives the Congress the power to set not only the size but the manner of court proceedings:  "To make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."

The so-called “necessary and proper” clause is the power Congress uses to pay the bills of the court, for example:  turn on the lights, provide the heat, hire the custodians, not to mention secretaries and clerks and all the other staff necessary to run the court.  The Supreme Court has no power under the Constitution to constitute the stuff which makes it able to do its work. 

That’s Congress’ power, and it can be used in more ways than it currently is used.  Congress can cut the budget of the court, for example, without directly influencing or affecting its powers.  It would be up to the court who to fire if a new budget would not provide sufficient funds to maintain the current staff.  In making the laws “necessary and proper” to execute its powers to run the government, the Congress could mandate that the court open up its proceedings to being recorded or filmed so that the public has better access to its deliberations.  The Congress could mandate that the court open its own meetings during which the justices deliberate on their decisions in order to provide more information to the public about how the court functions and whether or not its proceedings are fair and “proper.”

“Packing” the court with more justices to dilute the power of the current conservative majority seems to be off the table.  But throwing more light on the court and its proceedings would be difficult even for the current justices to object to, worried as they are that the public seems to doubt that the justices “do law, not politics,” as they like to maintain.  

If what the justices are doing at the Supreme Court is indeed “law,” then the court should make it possible for the public not only to read about that process, but to see it and hear it on C-span or other outlets.  And while the communications between the justices and their clerks might be privileged, the communications between the justices themselves should not be.  We pay the taxes that provide the salaries of Congress and keep the place staffed and operating.  We get to see and hear all of their deliberations on the floors of both chambers and hearings held to consider the laws written that govern us.  We also pay the taxes that provide the salaries mandated by the Constitution for the justices of the Supreme Court and the monies necessary to run the court.  We should have the same right to witness their deliberations.  Those taxes give us a right to see what we’re getting for our money.

Stop giving speeches you won’t let us see, or hear, or read, and open up the court and let in some light.  Until then, we’ll make the logical assumption that behind your closed doors, you’re just the partisan hacks you appear to be.

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