The letter Counselor to the Chief Justice Jeffrey Minear sent to four members of Congress rejecting their live audio request for Gill v. Whitford acknowledged for the first time in memory an institutional goal of “increasing transparency” and implied a split among the justices over opening up the courtroom to enhanced broadcast access.

After name-checking same-day transcripts, week-end audio and next month’s ECF implementation, Minear wrote, “The Chief Justice appreciates and shares your ultimate goal of increasing public transparency and improving public understanding of the Supreme Court.”

He continued: “I am sure you are, however, familiar with the Justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices.”

“That Minear touts Chief Justice Roberts’ accomplishments on transparency and then pivots to ‘justices’ concerns’ over live audio is telling, as it implies the court is divided between those who support expanding broadcast access and those who do not,” Fix the Court executive director Gabe Roth said. “Nevertheless, one or a few justices should not have the power to veto the types of reforms that – to quote Minear – would ‘increase public transparency’ and ‘enhance the public’s understanding of [the court’s] operations.'”

The evidence on live access to appellate arguments – in the Fourth and Ninth Circuits, in numerous state supreme courts and in courts of last resort the world over – has shown it has not “adversely affect[ed] the character and quality” of what occurs in the courtroom.

In fact, judges and attorneys with broadcast experience surveyed for a 2016 GAO study on the topic (p. 28) “cited several benefits of such coverage, including greater public access to the courts and educating the public on the judicial system.”

A link to the Sept. 29 letter sent by Reps. Gerry Connolly, Jerrold Nadler, Ted Poe and Mike Quigley is here. A link to the Oct. 2 response by Counselor Minear is here.

Fix the Court will again work with members of Congress and press organizations to push for expanded broadcast access should Trump v. IRAP and Trump v. Hawai’i return to the OT17 docket.