Saturday, July 2, 2022

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Appeals courts that sit as multi-member panels, including supreme courts, hear pleadings and legal arguments in public. But after those end, and the briefs are filed, the judges retire to their chambers to deliberate their decision in secret. Or “private,” if you prefer.

No constitution requires that they close their discussions. They could debate with each other in open session over how they’re going to rule, as boards of supervisors, city councils, and school boards are required to do in Iowa and most other states. 

But courts, by long-standing custom, keep their decision-making processes hidden. 

When I started to think about this column, I intended to advocate for multi-member courts to do their work in the open. But after considering comments I solicited from a number of veteran legal experts, I’ve reluctantly decided against it. I’ll explain why.

It’s not because judges would feel more free to debate the issues in private than out in the open. For many of them, probably most, that’s true. Human nature being what it is, people tend to explore ideas in greater depth and breadth with a few trusted acquaintances rather than in front of strangers.


But that tendency should not be an argument for secret deliberations. Judges are supposedly selected specifically for their ability to reach rational and logical decisions, free of the passions of the moment. They are to weigh conflicting values and practices while sifting through the history of case law as it applies to the issue at hand. Of all government officials, judges should be the most able to ignore popular opinion in the pursuit of truth, and therefore to talk among themselves with people watching.

But there’s a compelling argument—compelling to me, anyway—against public deliberations by judicial panels. It applies to panels in states that elect their judges.

Iowa is not one of those states. In Iowa, judges are appointed by the Governor, who selects one of the nominees recommended by a judicial nominating commission. All Iowa judges stand periodically for retention by the voters, but they are not voted into office by Iowa citizens.

So I was surprised to learn recently that about half the 50 states elect their judges. That means judicial hopefuls campaign and advertise their desire for a job on the bench, as do candidates for other public offices. 

As a lifetime resident of a state in which judges are appointed, I’m somewhat appalled at the idea of candidates seeking judicial positions going out on the stump in search of votes. On car trips through the United States I’ve seen billboards along the highways with giant photos of candidates for judgeships, their names in bright-colored letters several feet tall, like circus posters. Doesn’t synch for me with the concept of august personages in black robes seated up on the elevated bench.

But that’s how they do things in half the states. Under those conditions, requiring a judicial panel to deliberate in the open could jeopardize the fair administration of justice, particularly in a criminal case where public passions run high, or when someone’s civil rights are threatened by the majority opinion of the populace.

So I’ve pulled back from advocating a uniform practice of open deliberations by higher courts. 

But there’s still room for improvement in court openness, particularly with the U.S. Supreme Court. Justices on that bench are appointed for life and don’t have to answer to the voters. Despite that separation, the Supremes remain the most egregious example of a closed court panel.

As Twin Cities constitutional law attorney Marshall Tanick observed in an article a few days ago, the U.S. Supreme Court “has been at the pinnacle of this pattern of secrecy.” 

Proceedings in the great majority of courts in the nation are open to broadcast, by both audio and visual electronics. People can walk into a courtroom, sit down, and record what’s happening. Not so for the U.S. Supreme Court. Only in recent months has even remote telephone recording been possible there.

But televised coverage of the Supremes’ public hearings and appeals remains banned. Elsewhere that activity has been allowed for decades, in trial courts across the nation. 

And since Supreme Court justices don’t have to answer to the public, I would be willing to consider the concept of letting the people have access to their deliberations as well. They’re not elected by the voting public. 

It’s probably too much to expect that to happen anytime soon. But a good start to openness in that courtroom would be to allow video and audio coverage of pleadings there, as has been the norm in lower courts across the nation for years.

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