decided in 1903. i like that necklace a lot. that we -- [laughter] in the middle of the most sophisticated debate, we will notice a piece of jewelry. the first few times of that i remember them going, are you allowed to do that? am i allowed to notice your socks? it is a much more collegial and i would say less pretentious -- it's not one ought to behave this way because one is a supreme court judge. it's just nine people, many of whom happen to be women, and it's a privilege. it was really smart people who are men and women. >> so many smart questions, but our time

is up. [applause] thank you. >> today panel discussion hosted by the washington post titled the hunt headlines the nsa surveillance an ongoing revelations. delmonts include art and whogramblinlen greenwood recently won a cool separate tonight on c-span. -- a pulitzer, tonight on c-span.

religious guidance of mohammed, have never bombed any churches, have never murdered anyone girls, as was done in birmingham, have never lynched anybody, have never any time been guilty of acts of violence during the entire 33 years or more that the honorable elijah mohammed has been teaching. againstge of violence us actually stems from the guilt complex that exist in the conscious and subconscious minds of most white people in this country. they know that they have been brutality their against negroes. they feel that some day the negroes going to wake up and try

and do unto them as they have done unto us. taught by the honorable elijah mohammed to be -- to obey the law, to respect everyone who respects us. are taught to display courtesy, but also flex orn any way and seeks to inflict violence upon us, we are within our religious right to retaliate in self-defense to the maximum degree of our ability. from october 1960 three, an interview with nation of islam today onlcolm x, american history tv's reel america. on c-span3.

supreme court reporters, former law works and colors discuss transparency in the haitians highest court. the event was part of sunshine week. this is one hour 10 minutes. >> i want to welcome you all this morning. thank you for coming. my name is tony morrow and i am on the steering committee of the reporters committee for freedom of the press, which is co-sponsoring this. and i want to thank n.y.u. also for sponsoring this event. i have also covered the supreme court for 34 years and have been immersed in these issues for pretty much all of that time. this is the second discussion we have had on the subject of transparency at the supreme court.

the last one was a few months ago. the theme then and now really is that transparency in the case of the supreme court is about way more than just allowing cameras in the court. of course, that is very much on our wish list. we will see these other issues related to transparency develop even more this morning than over the last event. we have a terrific panel to discuss these issues, led by dahlia, it's my great pleasure to introduce her. she's also on the steering committee of the reporters committee for freedom of the press. another panelist sonny west used to be an intern at this reporters committee.

dahlia covers the courts since before the turn of the century. when she arrived on the beat and ever since she's been a breath of fresh air bringing tremendous insight as well as a touch of humor to covering the supreme court beat. when she writes about a supreme court argument, you almost don't need cameras. emphasis on almost because her writing is so vivid. before i turn it over to dahlia, i want to mention if you would like to give the supreme court a piece of your mind on these issues there's the scotus booth of truth upstairs where you can tape a brief video with your views on these issues. i will turn it over to dahlia. >> thank you, tony. i want to redouble tony's thanks to the various sponsors and to n.y.u. for this absolutely gorgeous venue. and you all probably know that last fall for the first time in history some advocacy groups

snuck a camera into oral argument for the first time ever we got to see live video of oral argument, which actually looked more like a sighting of the loch ness monster. it was awfully blurry and confused. but america went kind of crazy and people were interested in it, reminded -- especially those of us who go back and forth to the court and get to be in those arguments, the extent of which the branch that is meant to be the most transparent and open and everything that you need to know about the courts working is contained in the four corners of the opinion is actually completely unknown and unknowable to 99.9% of the american public who were glimpsing for the first time blurry judicial shoulders and getting very excited about it. so we're here to talk about transparency. not just cameras but all of the aspects of transparency.

but i want to just open by saying that transparency means not just that we can't see the workings of oral argument. but it means we also can't hear the workings of oral argument until the court releases audio on fridays. we can't readily access their website when we on the day the health care cases came down tried to access their website, it crashed. the best source of getting information about the court is not, in fact, the court's website. it's other websites. we don't know the justices' speaking schedules. we don't get copies of their speeches. it's very difficult to get their financial disclosures. don't get me started on their papers. so this branch that's supposed to be open and one of three coequal transparent branches of government is awfully hard to get into. and so that's what we're here to do today. and we thought in lieu of me reeling off introductions of

panelists who are amazing each in their own right, i'm going to ask each of them to just introduce themselves to you and tell you for half a minute who they are, why they have skin in this game. then i want them to answer a question that is completely open ended because that's the kind of hipsters we are. and the question is going to be, what does transparency at the supreme court mean to you? we will start right here with willie and go down the line. just ten seconds on who you are and why this is an issue that's important. and if you would sort of develop an idea about what transparency means to you. >> sure, thank you, dahlia, very much. it's a real pleasure to be here. i'm a partner at the partner goodwin proctor here in d.c. why am i here? i'm here because i'm a lawyer who briefs and argues cases before the supreme court. i used to work for the justice department and now i'm in private practice. much of work -- my work is

before the supreme court as well. what does transparency mean to me? as lawyer and advocate, it's not about the cameras, it's not about the papers, it's not about the speeches and certainly not about financial disclosures. it's about the decision of cases, which after all is the justices' a number one job, to decide cases. when they decide cases, what do they decide and what do they decide them based on? those are kind of transparency things that get me up in the morning. because the courts will often say we're a transparent branch because everything is public. the briefs are public. they're on a website, not the court's website. the oral argument is public. it's transcribed easily, peruseable on the court's website and so on. does the court limit itself to what's in the briefs or not? and i think one striking example of that is through buried in

justice kennedy's juvenile life without parole opinion from a couple years ago where he was developing some statistics about how many young offenders were incarcerated for interment life without parole. you see in that opinion very unusual citations including letter to supreme court library from federal bureau of prisons. letter to supreme court library from i think district of columbia, department of corrections. basically the justices had asked other parts of the federal and municipal d.c. government to do research for them and provide that information, secretly, not copied to the parties and i'm not revealing inside information because i don't have any but the solicitor general did not participate in that case. it may have been a surprise the

attorney general, soliciter general the bureau of prisons report that the bureau of prisons was opining or providing factions on this fairly complicated and nuanced issue. i think it was a surprise as well. so when you're standing in the court, you speak your piece, sit down and chief justice says the case is submitted. the briefing is all done. oral argument is all done. then researching begins so the transparency concern i have is justices often view that as the beginning and not the end of the fact at law and science gathering process. justice breyer i think is also fond of citing social science and other secondary literature in his opinion. in most cases none of which is cited by the parties, his own research. that's how he decides cases. he finds it useful. how do you respond to citations and convince him not to rely on

them because you have not seen them until they appear in his opinion? >> hi, i'm clay johnson. i'm the c.e.o. of a company called department of better technology. i'm a former presidential innovation fellow. used to be director of sunlight lab at the sunlight foundation and before that founder of blue state digital. we made barackobama.com in 2008 and a bunch of other things. i guess i'm here to present the technical aspect as you can tell by my lack of tie. what does transparency mean to me in terms of the supreme court. i think it means three things in desending order of priority, first thing it means to me is education. there are no other fields in the world i can think of where the players at the top of their game are obfuscated from public view. imagine if you will, we took every beautiful skyscraper and

wrapped it in a cardboard box before you could see it, or the scores to the super bowl were the only thing you saw from the big game. and this has an adverse effect i think on people who aspire to these jobs or to aspire in the legal profession not to be able to watch people who are at the top of their game deliberate before the court and argue before the court. i think that that's a remarkable law. the second thing is history. transparency means history to me. we're doing a great disservice to the dignity of the court to make bush v gore or citizens united are captured in low resolution audio files and that's it. and moreover, because of various technical things, oftentimes webpages are cited and arguments all of the time but someone did a study more recently that said, about 30% or so of all of the links cited in these arguments are now gone.

so we're not taking that sort of technical step of archiving the context of these decisions at all and as we further rely on technology, especially the web in order to do that, this level of context being removed seems to be a great disservice to our children and to the people that are going to come after us. and finally, it's about accountability. i don't find that argument to be the biggest and most important one. although it is important. i just find that my work both inside and outside of the federal government, you know, going to someone, anyone and saying hey, i would like to place a camera behind you so i can watch and scrutinize everything that you do in realtime tends to be a tough sell. so i tend to lead with more substantial arguments like, this does not reflect on the dignity of your job.

so i think those are the three things that matter the most to me around transparency. and why i care about this issue. >> good morning. i want to thank gabe for inviting me and tony and dahlia for hosting it. i'm excited to be here. my skin in this game is pretty serious. i teach constitutional law at georgia state in atlanta. it's ironic to me that the supreme court might be the least transparent court in the united states because at best i am with judge pozner that it is a political court. i in fact don't think it's a court at all. to the extent there are transparency issues to begin with judges i don't think the supreme court really counts as a court. i will give you a great example of that. every year thousands and thousands and thousands of people send surpetitions to the supreme court. lawyers spend hundreds of hours working, fee are paid, parties are incredibly vested in this. maybe the most important decision the justices make is which cases to hear because if

they don't hear a case, then whatever happened at the appellate level is the final say and we're done. and we don't even know which justices voted to grant cert in a particular case. this is an incredibly important public vote on a matter of public concern and there's simply no reason why we shouldn't know this. and it's relevant, truthful information about a public body. now, they may argue that too much would be read into who decides to grant cert and all of that. but the bottom line is, i was litigating supreme court cases in the 1980's with some of the leading litigators at the time, and at the trial court level, we had a short state case and the entire effort was to make the record such that justice o'connor would be pleased. and this was five years before o'connor would even see the case. so much speculation going on anyway. if we know that four moderates vote to grant cert in an abortion case, we have some idea

where justice kennedy might stand or at least where they think justice kennedy may stand. that might be wrong. it may be right. but who votes should be a matter of public record. which leads me to my overall point. with the president, with the congress, with state lectures, there is a presumption of transparency and then there has to be a good reason for secrecy. if there's a good reason for secrecy, to print that and presumption can be overcome. when it comes to the supreme court of the united states, there is a huge presumption of secrecy and only if that's overcome do we get transparency. and that to me doesn't make any sense at all. i have now run this by a lot of supreme court litigators and law professor and no one has yet given me a good reason why we can't find out who voted to grant cert in a particular case. if we don't have a good reason for it, the public should know relevant, truthful information. >> i'm bruce brown. i'm executive director of reporters committee. for freedom of the press.

and i'm here because the committee was underrepresented as a -- i thought we had to balance the panel out. for the reporters committee, which represents the interests of journalists and covering institutions like the supreme court, obviously, we care deeply about the immediate access to see and hear what goes on in the building. and we care about it not just for us but, of course, public at large. there's a great moment described in the book, fourth estate in the constitution, about the oral argument in richmond newspapers which came along at the time when the press had been losing access cases when it had been arguing for some kind of special privilege that it had. laurence tribe, who argued the case for the newspaper petitioners is after just another example of the press coming in and asking for some kind of special protection for its own interest.

and tribe responds and says no, the access we're seeking is the access that belongs -- excuse me, to the general public. and that was the core for the access law, that was the moment that tipped the scales and the court in richmond newspapers then grant this historic decision recognizing the right of access. again, not just for the press but for the general public. and when we at the reporters committee think about access, we're thinking not just in the short term. can we get reporters into the court to cover the hum of what happens in a particular news cycle building, but also the long term? dahlia mentioned papers and supreme court papers. and one issue we're also very interested in is trying to really force the court away from this ad hoc system of each justice deciding on his or her own when and how and under what

circumstances to make papers available and to move instead to something more regularized like what you have in the presidential system now, which was put in place by legislation in 1978 to deem those papers property belonging to the public. and not subject to the particular decision making of any particular justice when he or she leaves the court, and when you ask what access means to me, everyone that responded in terms of extreme particularity, i wrote some statistics down. my wife's grandfather was a friend of justice douglas and we discovered when he passed away that he had a number of letters from douglas and we were kind of trophy hunting going through the papers and seeing the stuff. so i looked it up online to see what i could find out about the papers of justice douglas and where they were. and, of course, you go to the supreme court website and immediately send you someplace else because it's not the kind of thing that they are collect

ing and gathering, although they should. as you make your way through a number of other websites, i found with great particularity great information about the papers of justice douglas, which i will share with you. they're at the library of congress. there are 1,787 containers of papers making up 716.8 linear feet. there are a total of 634 -- excuse me, roughly, i will give now, 650,000imate items. one box of classified documents and seven oversized documents. that is transparency. that gives a member of the public, a reporter, some sense of a particularity with which it's disclosed there a confidence that a justice who served on the court for what, 45 years, something like that, that those papers are preserved, they're out there for scholars,

for journalists who are writing books. when you see something like that in relationship to one justice, it begs the question, why can't we have that for them all? thanks. >> all right. i'm sonya west and i'm really honored to be on this panel today because this is an issue that is really near and dear to my heart. i was very briefly a reporter in my college and post-college days, including internship at the reporters committee, which was amazing. but decided to go to law school with this hope of defending journalists, which i did for a few years after law school, including in california, trying and usually failing to get cameras into the courts in california system. so this is an issue i had a great honor of clerking for justice stevens so i got to see sort of behind the scenes what was going on with the court and also became very interested in what the court coverage was of

what i was seeing. and that's when i became a big fan of dahlia's work. because she did such a great job and became an even bigger fan of tony's work, who i already had been following. and i'm now associate professor at the university of georgia, where i teach constitutional law and media law and i write about press issues. and so in terms of what transparency means for me, i'm going to mimic a little bit of what eric said but i feel like what transparency means is the presumption should be a right of access. and that the burden should be on those who oppose access. in this case the justices, that whether or not there's actually a first amendment right of access in some of these issues, i think there are arguments that there could be. we should nonetheless have sort of the first amendment presumption that we're going to have public access to this information. and the problems i'm seeing right now, and here i am going to talk about cameras in oral argument even though i agree we should not be completely focused

only on that issue. there is a wide range of other issues that matter. is the reasons we're getting the responses we're getting to the arguments clay laid out really well are not meeting that bar in terms of why we can't have cameras at the oral argument. and the arguments we're hearing from the justices, and we just get this piecemeal when they're asked about it. and they're asked about it all the time when they appear at law school or panels, basically fall into three concerns. one is concerns about participants. that they will engage in show boating and grandstanding. that just doesn't add up when we look at what's going on in all of the other courts that are allowing cameras in, all 50 states have cameras allowed into their courtrooms in some form. canada's had cameras for more than 20 years. this issue of showboating just doesn't stand up. it also doesn't make sense when you think about what a big deal oral argument at the supreme court is. justices already know that everyone is watching who asks the first question, who sounds a little bit critical in their question.

they keep track of who makes the audience laugh. they know they're on stage here. advocates know, willie attests to this. they're not thinking about the audience. they're thinking about justices and making their points and reading justices. the idea showboating would occur i think just doesn't add up. the other concern is about what the media would with w camera access. concerns about snippets and sound bites. belief there's concern with jon stewart and stephen colbert would do with these clips. but again, that doesn't add up with the fact that already what we tend to go from the court is snippets and sound bites. we just get it in audio form or we get it in quotes in the newspaper. we just hear about this question or that question. and so the area we're hearing more these days from the justices and i find concerning is that we're hearing from the justices, even justices sotomayor and justice kagan at the confirmation hearing supported cameras in the courtroom are starting to say

these things. this is the trend. we see nominees start out in support. they get on the court and start to change their mind, which suggests we can't really just weight out this issue. it's not just an age issue. this is a concern about the public. we keep hearing this concern that the public won't understand what they're seeing. they won't understand oral argument is just part of the process. they won't understand that the justices have to be harsh on both sides. they might think someone is getting ganged up on. i type this to be a very concerning issue because it suggests that more information is actually going to be bad for the public. that the public needs to be shielded from information. and it does seem to have an elitism to it, that already those of us who do read the transcripts and listen to the audio or read the reports from the supreme court press corps, that we're the types that can understand where oral argument falls in the process but tv would reach a different kind of audience who wouldn't understand it.

so i find this very concerning and i certainly believe it doesn't meet the bar of is this argument good enough to go against our presumption that i think we should have of accessibility and openness. >> i want to give you a chance to react to one another but i want to ask another question. and i think it clicks at one theme we're hearing today. undergirting this conversation about why the courts are different from the other branches of government is just i think this sort of chronological argument we're different because we're different. we're just different. if there's more transparency, we will stop being different. yet almost every variation of the problem of transparency comes down to the idea, look justices are different. that means their papers are treated differently. it means their decisions are treated differently. it means access to them is treated differently. we can't see the texts of their speeches because they're

different. i wonder if anyone wants to take a crack at this question of are they different? are they just different? and if they are, you know, some of these arguments begin to make sense. so, clay, looks like you want to go. >> i think to an extent they're different because these are the only people inside of government that don't need television in order to get their jobs. you know, i suspect that a member of congress cannot get elected without television. i suspect the president cannot get elected without television. without stepping in front of a camera. without being in the public. whereas a justice can. so this idea of i guess the confirmation hearings or whatever, but this idea that television or video or transparency is part of their

duty becomes sort of difficult because it wasn't part of the job interview process, right? so i mean that would be my case for culturally why they are different. i also think that, you know, you have to look at the supreme court as a leader, so to speak, for the entire judicial branch. for all of the courts. the interesting thing is it when you look at the supreme court's use of the internet and start comparing it to the lower courts, the supreme court is actually doing quite well. sort of like my 1-year-old is doing quite well at speech compared to my cat. but still, you know, he's doing quite well. and i think that you're not going to see much change in this field until the supreme court changes because the supreme court represents the end of someone's career all without

cameras, all without television, all without transparency. and as such, why would i -- why would i change now when i never had to do that my entire career? i never found the people at the end of their career are the first to embrace new technology. >> so the point is the court not different in any way that would justify reversal of the presumption of transparency in government. >> sure. i meant culturally. >> and also they do have the nomination hearings -- not really hearings, but they're on tv. and there's no problem going on talk shows to hawk their books. but the truth is, the supreme court justices are less like judges than any other judge maybe in the world. they're the only judges in the world with life tenure that serve on the nation's highest court. only ones. their decisions as judge pozner repeatedly said are essentially political.

the only secrecy -- i don't want to see their draft opinions. that is fair. i don't want to hear deliberations with law clerks. that's fair. everything they do that's public should be public. and i will give you an example. it's just a small thing but it's not a small thing. justice scalia was at a conference in atlanta last friday. this was a three-day conference. the only person who said you can't tape record, video record my comments is justice scalia and then it turned out that it actually something happened, the supreme court justices, and now no one gets to see it and a public official making a public speech, ranted about how same sex sodomy and abortion are not in the constitution and shouldn't be protected and ranted and got embarrassed at the end and no one saw it. if he's going to come to atlanta and go to the governor's mansion for a reception and appear in front of 500 people in a room and give a public speech, it

should be recorded and there's no good reason why we should have had to accede to his request that it not be recorded. >> why did you? >> he wouldn't have come otherwise. >> to pick up on these remarks, it's self-evident that they are different in the sense that other than justice kagan, they've come from one cloistered life to another. the route to the priesthood is through the federal appellate courts and these institutions are bundled up so when they get to the supreme court, they don't reflect the range of professions and exposures in public life that other government people would have by the time they got to the the high rung. >> you're saying they're different because they have super thin skin? not because -- >> no, it's because they're culturally -- transparency is not a technical issue or a legal

issue, it's a cultural issue. when transparency is a technical issue, it fails, it almost always fails. if you look at the president's open government agenda, when the president on day one was like we're going to open up all of this data and you go to data.gov and look at the last time the data sets were updated, it was 2009, 2010, and that's because it was very much a technical issue and not a cultural one so if an institution isn't ingrained with the culture of technology, those transparency initiatives will often fail. >> willie, did you want to respond? you lunged. >> i just couldn't see. i think if anyone who agrees with eric that the corps is just another political body and they're doing what they want, they are imposing their will in all of these -- >> anybody disagree? >> absolutely, i'm willing to disagree with you firmly and i

think that because they are not public officials whose job it is to appeal to the public, right, if a member of congress or the president does something that does not stand the light of public scrutiny meaning it offends a lot of people, they may be doing their job wrong. that is not true of judges or justices. that is what they are paid to do and for exactly that reason, the fact that their -- and their opinion might be unpopular, who cares. the fact that their private votes, the reasons they give in conference -- do you think their votes in conference should be public? >> no. the preliminary vote, it can change. >> their deliberations are not public. oral argument is part of their deliberation, too. it's supposed to be a fleshing out of what is important here. >> it's public already, though. >> absolutely. that's a separate question.

public in what way, but i think what we need to focus on is who are these people, what jobs do they do and which parts of it kind of are -- they're just public officials running around giving speeches, selling books, and taking money from the public treasury. the fact that they operate a branch of government, they have employees, they, you know -- they, you know, take gifts and travel, accept travel and so on, that's all fair game but when you're talking about the job that they are doing, as judges and justices, i think it's different and equating them with members of congress and the president is a false -- >> i would throw in there that the ways that they're different argue for openness even in terms of a legal branch and not getting into the political argument. they don't deal with witnesses, they don't deal with juries, things that could raise valid issues about those sensitive things.

the issues they deal with have the most national importance. so, yes, they have tenure which almost all other government employees don't have except some federal appellate judges so if anybody should have this openness, it would be them, i would think. >> they are the only governmental officials in the western world anywhere that are final, leaving aside the constitutional amendment process, they are final, they are unreviewable and have lifetime tenure. they should have the most transparency for those reasons. >> one more veillance to this is how are they different from canada? because i always remember, it always comes back to canada but i remember hearing ruth bader ginsburg and beverly mclaughlen, the justice of the canadian supreme court talking about this and they say canada has cameras in the court.

>> nobody cares about canada. [laughter] >> that was justice ginsburg's argument. >> the canadian supreme court most of the time can be overturned by a super majority vote of the legislature. these men and women are final. >> i want to ask a question that i think sweeps in some of the things you just talked about and that is there are work-around to all these rules because not just the pin camera. that's a new and interesting workaround but when justice scalia says nobody's going to cover my speech, what happens if someone tweets it or clarence thomas came to u.v.a. a couple of years ago, you were sworn to secrecy and every word was published the next day in politco with mistakes. justice alito goes to speak at a dinner and someone just takes a photo of him and suddenly the

media has captured it so it seems to me that more and more when the court puts up barriers to transparency, what happens is what rushes in is less than what they would afford us if they would let us in so i wonder if anyone has thoughts about, is there a tipping point -- i'm thinking about the healthcare cases what they were handed down and for the first couple of minutes, it was wrong and maybe the court has no obligation to help us get it right. >> last friday, they got it wrong and in this case they did it to his benefit but it could have been to his detriment and it would have been better if someone could say, let's go to the videotape. >> i have screen shots of the front pages of fox news, msnbc and cnn on the day of the -- and

the fox news said, obamacare struck down, and msnbc said, supreme court upholds obamacare, and cnn said, breaking news, supreme court issues response. we'll tell you more in a minute. i find that apropos and demonstrative of our media environment but the interesting thing here is that we're in a more -- i think because of the internet and because of technology, we're in a more politicized environment than we've ever been. look at what happened to shirley sharad at the beginning of the administration when a 30-second sound bite ends up on the glenn beck show and you end up fired for words taken out of context so i think there's a level of demonstrable fear and healthy fear of public scrutiny. when i was working at the

sunlight foundation, part of my issue with sort of transparency as a panacea is not only are you arming the smart lawyers but you're also arming the glenn becks and keith olbermann's of the world to advance things that may not be the truth. unfortunately, the only real cure is a good transparency and i look at the political, activist discourse around things like citizens united and i wonder how much better our public discourse would be if those deliberations were a bit more public. i understand that the oral arguments are public but a bit more public. if the public could see those arguments, and i wonder what harm this lack of transparency is doing to the public because

our discourse has to be distilled into what gets delivered to us through fox news, msnbc and cnn, which seemingly on that day couldn't make up its mind. >> it's fair to put the question back to you, with an analogy. last summer when disclosures were made, the department of justice had subpoenaed a. p. phone records and seized emails from a fox news reporter, holder launched the process to work with the press on trying to figure out what reform needed to happen on media subpoena policy. i would wonder after some of the glitches in reporting the healthcare decision, why doesn't the chief justice wander down the hall at some point or reporters try to wander up the hall. >> there's no wandering up the hall. >> we need to start talking. this was a monumental decision, the reporting of it was flubbed

and the press needs to work with the court because it's the court's own legitimacy at stake. is that a possible conversation you could have to launch a dialogue the same way we've launched one with d.o.j.? >> it's a great question. i'm not in that conversation. i'm looking at tony, he would have spearheaded. the court disaggregates the media's problems from the court's problems. there's a famous story of the press going to then chief justice rehnquist and saying please don't dump six 100-page decisions on us and ask us to get it all right. can you space out decision days so we can do our jobs and get it right and the response literally was, why don't you just only cover some of them today and then you can cover some more tomorrow as though the news happens magically at the caprice of the court so i think that the

court thinks these are the media's problems and the court does not feel there's a cost to fox getting it wrong or cnn getting it wrong for two minutes. >> there was a very substantive problem underlying this procedural transparency issue. i know there will be disagreement about this but the substantive problem is the justices really feel historically they are special, they are different, they are not political and it's a temple on a hill. they really feel that way so they're not going to worry about the press. they're not going to worry about all kinds of things that other governmental officials have to worry about. we can't develop this today but they're not special. their opinions are not based on law, they're based more on values and not politics republican and democrat but personal life experiences, politics and they are far less special than they think and the faster we get more transparency, the more that will be clearer. >> to circle back to canada, they do this differently in canada and from my

understanding, the press corps, someone comes from the court and says this is what the case is about, do you have questions, this is how we can explain it and i think there's quarantine for a couple of hours where everyone reads and figures things out. i'm not sure how i feel about that exactly and they do let them know big cases are coming to be prepared but there is a different way to do it and i think what we're hearing here is from the political branches, there's an understanding, a love-hate relationship with the press, the press hurts and helps what they're trying to do and with the court it's more just the apathy/hate and the idea that the press could help them in terms of if they worked with it in terms of public understanding of what it is they're trying to do is what's missing and it's a shame that they can't get more into that mindframe. >> willie? >> i'm curious. when they let some people into

the cloister and give them a peek of the opinions, does it include bloggers? does it include interested members of the public who might want to talk about it on a radio show? >> i wish we had that problem. >> i don't know the answer to that. we have a supreme court that gives out press credentials so it's making those decisions on questionable grounds. >> reserved seats to members of the institutional press and denying them to people who might have a blog but everybody gets the decision at the same time, right? >> right. i'm not advocating we do things exactly like canada because i think the two-hour quarantine is a little questionable constitutionally. >> scotus blog doesn't have a press credential on the supreme court. if any other branch of government would making a decision so unbelievably stupid, it would be -- scotus blog is where we get our information about the supreme court and

they're denied a seat at the table. that is crazy. that's an argument that tom goldstein that owns scotus blog and argues cases, it's a conflict of interest but that's not for the supreme court to decide. >> respectfully, isn't that a circular argument? scotus blog has covered the court and made itself essential so the court has to let them in? >> yes, of course. it's the press. yes. sure. >> i certainly agree with you that they're the press but what form of access is it that -- what are you focused on? it's not a hostile question? what access for scotus blog are you focused on? >> simon, a supreme court reporter for the "new york times," gets to hear the oral arguments, gets to hear the decision announcement, gets to see justice alito doing this, he gets to see that firsthand, in person, and he was talking about this last friday in that it's hard for him because he'd rather

be writing but he wants to be in the room because that's the most important over time. scotus blog's amy howe is not in the room and she doesn't have that benefit of seeing it firsthand with all the emotions attached and at this moment in time, i think scotus blog deserves a seat in the room more than the "new york times" because they're trying to live blog it. >> isn't lyle in the room? >> because he has an independent press credential, not as a representative of scotus blog. >> one thing i like to tell people is that when we had to decide when the healthcare cases -- sorry to keep perseverating on the healthcare cases, it was traumatizing so i'm not over it yet but i'm working through it. one of the things that was super emblematic of what eric is describing is you literally had to make a choice between either being in chamber, watching this historic hand-down, watching john roberts read his opinion, watch ginsburg read and then

knowing that when you were finally allowed to leave, 19 hours later, because they were reading, it was over, right, it had been tweeted, it had been discussed. wolf blitzer had been talking about it for an hour and a half. for purposes of my editor, it was over but i chose to be there but the other choice was to be in a room where you could hear it but you couldn't -- if you left, you were stuck so you could hear it but not leave or you could be in a room where you could neither see nor hear but you could write. it was the three monkeys, hear no evil, see no evil. you had to choose which monkey you wanted to be and it seems to me that in 2012, was it 2012? we need to up the ante on the monkey. that's not how to cover a major historic opinion and i think it loops back to bruce's question

which is does it affect the court is that we didn't -- maybe it doesn't. maybe the court didn't care. >> i'll tell you, there's two ways to look at this in terms of transparency, goes back to my opening argument. maybe the court didn't care. maybe the court shouldn't care. but the video could be released a year later or five years later and it would still have an impact, right? it would still be profoundly useful to the legal profession, to law students, to the -- whatever the 50,000 law students that weren't allowed in the room, and i think that we have to start thinking about transparency as being a bit larger than helping reporters. and it being about reflecting the dignity and majesty of the court and the importance of the law, which is -- i mean, the

other part of this argument is that the law itself is completely locked up from the public and the only thing that's more morally offensive to me than the judges being locked up to the public is that i have to pay as a citizen of the state of georgia, i have to pay a company called lexus nexus $800 to get access to the official code of georgia. that is gross that we've privatized that is -- that our courts, our courts are basically paying westlaw hundreds of millions of dollars for access to its own records. this is preposterous. it's a thing that i think is hampering the legal profession. it's hampering our own history and i think it's something that does not reflect the values of either the constitution or the united states. >> that's -- thank you for saying that. that's a useful frame. we've got questions and you're encouraged to write questions and hand them to a person who's

going to collect them so i'm going to ask the first question that i've got. since asking nicely appears to be an ineffective strategy so far, how do you or your organizations propose to make actual change and increase transparency? >> in 1802, i think it was, congress shut down the supreme court for a year for really bad reasons but they did do it. they turned the candles off. i think congress will probably never do this, i think it will be fully constitutional for the congress which funds the supreme court to give the court a choice, either televise your oral arguments and decision announcements or do it with no heat, no air conditioning, no lights and fund yourself. that's a fully constitutional use of congress' power and i think they should do it. >> does anyone have a less radical notion they'd like to float? >> i think the issue, the credentialing of the scotus blog

has been kicked around for a while and i think it would be interesting to see that taken to another level to force the court to examine its own practices publicly, in a transparent way and i think that part of this effort, that we're engaged in today, is part of an ongoing initiative to focus public attention on these issues and to hope that the people in the building who are there to protect the long-term reputation of the court, we just touched on it a few minutes ago, how do you get them to focus on the fact that they need to protect their own institutional legitimacy and essential to that is this transparency initiative.

when you look back at the richmond cases that were important to the media, at least the press and court were in sync back then and what seems so discouraging today when you think about trying to get reform by bringing lawsuits is that we're so out of sync. the press and the court are so completely out of sync today and there was something special about that moment in the 1960's and 1970's when they were working together and they're not today and it does make me think that the kind of strategy that we used in those decades probably will not be the most effective one today. the litigation strategy, in other words it. >> i think the cameras in the courtroom thing is sort of a done deal. i think 10, 20 years out the, you know, i'll have a small camera in my eye glasses or something like that that will be -- the pen camera is the start of it, but what's the supreme

court going to do? ban people from wearing glasses in the supreme court? >> yes. >> with cameras in them. >> they'll are undetectable. i think cameras will be within the next 20 years undetectable. the pen camera is like the tip of the iceberg and that that technology will solve that problem. >> right now if you walk into the d.c. federal courthouse, you know, you have to -- i think they make an exception for lawyers showing up for a case, but they will make you surrender your phone that might have a camera. five years from now, you might surrender your eye glasses. >> removing my ability to make phone calls is significantly different than removing by ability to see. >> yeah. >> right? the other stuff, though, personal financial disclosures and stuff like that, you know,

who knows how that will happen or if it can and ever well. >> let me segue to the next question because we have heaps of them. who gets -- this is just an informational question. who gets to decide on the changes in the policies about transparency? are these decisions taken by the chief justice? does the court vote? is the staff voting? >> we don't know. >> it's really unknown whether if congress passed a law, whether or not that would apply to the court, whether they could make them do that. we really don't know. >> the closest indication we got was when they closed the front doors, they published a dissent by justice breyer saying we should still allow people to walk in the front door of the building. >> congress could do this. if the political will was there,

they have the money, they could do it. >> justice scalia, i'm sorry -- it's the chief justice making the decision about audio policy, we know that, right? that the chief was making the decisions about which cases were going to be audio, same-day audio. i think that was -- i think it was clear. >> that's my understanding, right. >> it was a case-by-case -- today we'll release this one but the other ones you'll have to wait until friday but when they decided to start releasing audio on fridays instead of at the end of the term, i don't know if that was scalia. >> when justice douglas got sick and had a stroke, the justices took -- americans don't know this -- a secret vote and that they decided they would not decide any case where justice douglas' vote would matter. the eight justices secretly decided they would not decide any case where justice douglas' vote would matter. the only reason we know that today is because justice white was so offended, he wrote a public letter about it. had he not done that, he would

never know. they view themselves as having no obligation to tell the american people that justice douglas was so sick, he couldn't decide a case and they would decide arbitrarily which cases in which his vote might not matter. >> they goes to the justice scalia recuse, where he refused to recuse himself in the death gate oral argument and did america the courtesy of writing us a long letter explaining why he didn't think he had to recuse. the legitimacy of them not just as individuals but the court can't help but be raised in the eyes of everyone to see the behind-the-scenes thinking. it's incredibly material when they recuse and why and the idea that we kind of know today why justice scalia sometimes chooses not to recuse himself is not a

standard, right? >> don't get me started on the healthcare case. we'll be here all day. >> are the -- eric, you're not allowed to answer this one. are the justices fundamentally afraid we're going to learn they're not as neutral as they say they are when they're deciding cases? is that the fear? eric? >> yes, unequivocally, yes. they spend -- i'll do it real fast. they spend so much time and energy in their written opinions which is their arguments as to why they don't have to be transparent, because everything comes out in the written opinion, hiding the reasons why they do the things they do because they'll have text, history and precedent. >> where do you want to take the cameras that will find the hidden -- >> i'm just suggesting the answer to the lack of

transparency can't be the written opinions is what we share with the public because they're dishonest written opinions. the real reasons why they decide the way they do is not in the text, history and precedent. that's important but it's in a whole different set of values and life experiences which is why scalia and ginsburg who are good friends and go to the opera together, disagree on virtually every contested issue of constitutional law that gets to the supreme court. it's not because they have different skills. that's because they have different values and they would never admit that in public and that's crazy. >> i point out that transparency won't solve that problem. >> i know. >> just because you turn the lights on in a roach filled apartment doesn't kill the roaches. >> i didn't use that phrase. that wasn't my phrase. to be clear. >> you see what i'm saying, it turns out sunlight isn't a particularly good disinfectant, alcohol is much better.

but when you turn the lights on, shine the lights at things, the shadiness just moves to the corners. the roach crawl under -- >> disagree. because scalia's a little bit bullish attitude comes out in oral arguments, i don't think he would change that and knowing his character, a little bit of a bully, with all due respect, is important to the american people. we should know that he is a little bit of a bully. we should know that justice thomas never speaks. >> we'll know he's a bully but as you said to begin with, it's final. he's there. he's a lifer. so it's not going to change anything. >> i think it's true that general fear is part of this. justice breyer has said, fear of the unknown, we've done it this way for a long time so let's not change anything and a sense that this is an institution we need to protect and we don't want to make changes and fear of loss of

privacy is clearly fortunate justices alito and others and loss of anonymity so there's fear that's part of this. >> they have to look at the deeply and popular nature of the other branches and think that maybe ignorance of what they do is better. >> what is their approval rating? >> that's what's so sad because anybody who's been to oral arguments, it's terrific. >> general fear is part of it. what remains i really resume cameras, everybody thinks i would be great. that is what worries them, that it would not be exactly the same. i know everyone also must panel is convinced it will be exactly the same. >> no, wait a minute, that is not true. i do not know what would happen. i'm not smart enough to know. the question is what is the presumption, and only if there is a really good reason to be

secret, and since we don't know, you can't say i don't know, that is not a good reason. and we don't know. >> i think his point is a for important one that we are having a fight about it has to be right now, today, your fear point is that if they videotape them for history and release them later, that would have its own value. there, the fear is the reporters committee will never give up. if the videotape exists, they will want to come in on friday but they will want today, certainly 910 years or 50 years, just like they are with the justices' papers. but i agree with you that the video would have tremendous historical value. >> i would also point out that prop comedy in the united states congress has taken off. >> you can make a role for the supreme court class. >> i talk brown to a generation of students, there is a hotel

two blocks, and then convincing brown, itrgument in just makes it so much more powerful. the fact that we cannot do that -- >> or bush v. gore or the health care cases. quite few can listen to it. you cannot see it. >> and mia misremembering? but the british supreme court in the u.k. had the cameras trained not on the justices but on the advocates. the idea is that they want students to be able to learn oral advocacy. there are some hybrids were -- larry whether you want that. bruce doesn't want that. at least you can say there is this education purpose. there is somewhat historic purpose being met. students can learn and watch and still protect judicial privacy. there is something in the middle.

>> even if you're against cameras, and i can't fathom that. how can you be against cameras and the opinion announcement? millions of americans would've had a citizens' moment of unbelievable historical and present-day significance. what possible downside could there be to hearing justice kennedy announced this historic decision? how could you be a downside to that? >> i think one of the arguments would be that the opinion announcements are not the opinions. they are not signed off by all the justices the offering justice right. i agree with you. i think it should be there.

>> here is another question. i'm trying to get through as many as i can. does true transparency require that justices records must be available online? isn't it too limiting to have access to some in a library somewhere? >> the answer that is yes. >> when i tried to figure out where justice douglas' papers were, you saw how few of these archival materials are available online. a very small percentage. the rest are available, you have to go to a research institution somewhere. >> that is a money issue. lee epstein has gone and had in tern photocopy digitize with a digital camera on a tripod and took pictures of the memos that clerks to the justices who

participate in deciding whether to grant the petition or not. she had someone take pictures of every page. they are on her website somewhere. the library of congress did not do that for us. now they are there. it is a great resource. >> 50 years from now the supreme court justices working with papers will be absurd. just because the people as they work through -- like, who 50 years from now would not look keyboard as the first method of creating text? >> playing say. >> to the extent that justices are e-mailing with their law clerks and saying -- i'm not so sure about the quote on page seven. what if we said blah, that is going to be lost to history. they may save the paper drafts.

that is one reason to be glad that they still use paper and messengers and photocopiers. that will be saved. >> on the other side, yes and no. the digital records are much easier to preserve. >> i'm not saying they should not preserve them. i suspect that they won't, so be glad that there'll be something left for history. >> nobody's arguing we have a right to the discussions between justices and their law clerks. i don't think anybody is. i am certainly not. >> 100 years later, perhaps. >> i would not. that has to be confidential. >> i think we have time for this last question. a few questions i didn't get to. i apologize. what if any problems have high courts in other countries or state courts, what problem or unintended consequences have other courts had after allowing cameras in the court?

this is the question. >> the supreme court justice in ohio is a getting a whirlwind tour. they had cameras there. i forget her name -- >> o connor. >> her answer is i have thought about this i have canvassed , other judges. nothing that has come out. they can't find any evidence of any harm. i am sure that is an overstatement, but that is her position. >> name a case decided by the supreme court of ohio. [laughter] name one. >> why does that matter? >> because the amount of attention focused. yes they are all broadcast on the ohio news network. but the amount of attention is not comparable. it is not comparable situation. >> if we were in ohio. >> do you really believe it is going to affect behavior of judges or lawyers. >> lawyers, certainly. have you ever between oral argument in which a state attorney general takes the lectern and argues for the state? >> it happens today.

if you are the attorney general of georgia you're going to be , careful what you say in front of the supreme court. i don't know the cameras are going to make a difference. >> it is too late. it is a public hearing. some people get to go in. we are done. any other institution of government would have to televise. >> ronald goldfarb wrote a book, and he says it follows the exact same pattern, skepticism and concern at the beginning until acceptance, and then enthusiasm. it follows the same archetypal get used to it. iowa has had cameras in their court for more than 30 years. their chief justice has come around and testified at congress saying no problem. it has been great. we put them online. people have access to it.