Saving Our Courts Means Questioning All U.S. Supreme Court Norms

Pink background with red toned U.S. Supreme Court and all nine justices toned in black and white and holding their hands up from left to right: Brett Kavanaugh, Elena Kagan, Amy Coney Barrett, Ketanji Brown Jackson, Clarence Thomas, John Roberts, Sonia Sotomayor, Neil Gorsuch and Samuel Alito.

Conservatives have rigged our courts into crisis. They’ve seized control of the U.S. Supreme Court and built a pipeline through the 5th U.S. Circuit Court of Appeals, particularly in Texas, to ensure they can receive whatever political result they want — the rest of the country be damned. Solving this means looking at specific reforms, but it also means being willing to question all of the Supreme Court’s current practices and forcing alignment with our democratic values. 

The most recent cause for concern is the student loan debt cancelation case. Last week, I stood in front of the Court asking myself (and the crowd) a simple question: Why are we even here? As the justices’ questions during oral argument suggested, the challengers to President Joe Biden’s plan don’t even have standing, meaning — win or lose — they will be unaffected by the eventual ruling.  

Without standing, this case is not fit for judicial resolution, which the U.S. Constitution limits to actual injury. Broad policy questions like debt cancelation belong in the court of public opinion and the legislative and executive branches. And there, the people have already decided: Student debt cancelation is the way forward to realizing the American dream. Still, conservative interests have driven the case to the Court at light speed and will likely be rewarded by the conservative majority. 

This judicial overreach is enough to cause any concerned citizen a few sleepless nights. But what alarms me most about the Court is that, at the exact moment that it departs from precedent to pursue its unpopular agenda, the Court is becoming less and less transparent. 

As the Alliance for Justice previously reported, the justices are increasingly relying on the shadow docket to institute seismic changes. Using the shadow docket — which handles the emergency requests to the Court that are decided without full briefing or argument and result in orders that are frequently unsigned and unexplained — allows them to avoid their standard procedures, including the usual process of taking the time to hear from both sides in thorough briefing. Then they issue an opinion without any explanation at all for decisions that nevertheless impact millions of people. It’s bad enough that their written opinions are not accessible to most citizens, but then they insulate themselves from critique by saying as little as possible about their reasoning. 

Unfortunately, the shadow docket is just the tip of the iceberg when it comes to how the Supreme Court is slithering away from democracy.

My guiding principle is simple: The public deserves to understand the operations and decisions of its Court.

There’s virtually no transparent process in how the justices arrive at their final opinions. When Congress passes a law, the public can observe every single amendment that was made back to the original filing of the bill. But like spies engaged in espionage, the justices keep nearly everything about their deliberations and work totally secret. As CNN recently reported, they print documents on printers that produce no logs of what was printed, and they use “burn bags” to destroy all deliberation materials.

Add to this the dine-and-dash approach they have when delivering their most consequential decisions. We tend to get the big blockbuster decisions near the end of the Supreme Court’s term in June, after which the justices literally disappear from sight. They go on “vacation” for months until the Court returns to session in the fall. Just as citizens are beginning to reconcile the monumental impact of the Court’s actions, the justices are free from engaging with the public whatsoever. Imagine all of the pregnant people forced to carry to term against their wishes after Dobbs and ask yourself: Did Justice Samuel Alito and the other justices really have nothing to answer for out of respect for their fellow citizens? 

I know the old refrain: The Court follows the law, not the will of the people. But no democratic institution nor public official, however insulated from the democratic process, deserves to be this opaque and unaccountable for its actions.

opinion Conservatives Have Been Packing the Courts for Years

By Rakim Brooks, president of Alliance for Justice.

The Court still serves the people. It shouldn’t be unreasonable to insist that the justices be in conversation with us about our sacred text and laws in a way that is audible to most Americans. Accountability and transparency have a proper relation to one another in a democracy: less accountability, more transparency.

Here are some reforms that I think are worth considering.

Just as we have a Presidential Record Act, which changed the legal ownership of the official records of the President from private to public, Congress should consider a Supreme Court Records Act to preserve the deliberations and work of the Court for public record.

Similarly, Congress announces its hearings and the subject matter prior to when they occur and the Court should follow suit by announcing opinion days weeks in advance and specifying which opinions will drop on which days to allow the public to prepare.

And yes, it is time for cameras in the Court and for the justices to adhere to something like the Plain Writing Act, which requires federal agencies to explain their reasoning in a way that is intelligible to all of us. I would even force them to read — on camera — abbreviated versions of their opinions to the public on those pre-announced decision days, something they’re still only offering to people who can physically be in the room with them. 

My guiding principle is simple: The public deserves to understand the operations and decisions of its Court. Measures like establishing a code of ethics for the justices, imposing term limits or expanding the Court are all important to consider in this moment. But we also must reform the Court so that its “traditions” actually make sense for a democratic society — and so that it can stop undermining democracy in the dead of night. We must immediately demand that Congress act to ensure transparency. 

Rakim Brooks is the president of Alliance for Justice and a public interest appellate lawyer.