The canary in the Supreme Court coal mine

Life for a canary in a coal mine has been described in three words: “short but meaningful.” Years ago coal mines did not have ventilation systems, so miners would bring a caged canary into the mine. Canaries are sensitive to methane and carbon monoxide, which made them ideal for detecting any dangerous gas buildups. As long as the bird kept singing, the miners knew their air supply was safe. A dead canary signaled a need for immediate evacuation. Perhaps former Minnesota U.S. Sen. David Durenberger’s commentary about the United States Supreme Court makes him the canary in the Supreme Court coal mine.

Durenberger spent most of his political life (and post political life) focused on health care, not courts. He now has a blog where he recently wrote:

What continues to amaze about red/blue, either/or politics in this country is the fact that the U.S. Supreme Court is buying the program as well. Those whose single-issue business it is to maintain political polarity have made judicial appointments, and especially the Supreme Court, a part of the national election battleground. The result makes political hash out of the advice and consent role of a divided Senate. One might assume the U.S. Supreme Court is above all this; apparently not.

Justice Scalia announced recently that he is an expert on legislative intent, not the Senate or the House. Then Chief Justice Roberts, in the Defense of Marriage Act, Section 3, case,  informs us that lobbyists, not voters, have the greater influence on law making: “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked an appellant’s lawyer. And followed with: “As far as I can tell political figures are falling over themselves to endorse your side of the case.” While Justice Thomas remains mute. As always.

So the real question is: What role does the Supreme Court intend to play in influencing public opinion about the constitutional legitimacy of any controversial laws passed by the Congress?

Alexander Hamilton wrote that courts have “no influence over either the sword or the purse” (The Federalist No. 78). They have “neither force nor will but merely judgment.”

Durenberger’s life of contributing toward better public policy hasn’t been as short as the life of a coal mine canary. Unlike the canary, he will continue to contribute to thoughtful things about the issues of our day. But his statement about the Supreme Court is a warning to all of us and should be to the U.S. Supreme Court.

Court’s approvals have declined

The Supreme Court’s standing with the public has slipped significantly in the past quarter century. Just 44 percent of Americans approve of the job the Supreme Court is doing, and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views, according to multiple polls conducted by The New York Times, CBS News Gallop and the Pew Foundation.

There are sharp partisan divisions in the Supreme Court’s job approval rating. Currently, 57 percent of Democrats approve of the Court’s work and 56 percent of Republicans disapprove. But there are also quirky views of the Supreme Court. According to Pew’s survey, a majority of liberals expressed that they view the Court as conservative, while most conservatives noted that they feel the Court maintains a liberal bias.

To be fair, not the entire drop in public esteem and understanding of the Court is the Supreme Court’s fault. The decline in the Court’s standing stems in part from growing distrust of major institutions in general and the government in particular. The nature of the cases that the Court decides typically are hot button and can engender strong feelings. There are interest groups whose “business plan” is dependent on fundraising from people who care about issues that come before the Court. Saying “aren’t they doing a great job so don’t worry” does not raise a lot of donated money. But the questions about the legitimacy of the Court’s decisions also are a product of a sense that the Court is more political. The explanations of decisions, the justices’ rhetoric and the transparency of the Court itself are things the Court can control. Changes need to be made.

Perception trickles down

If it were not for the fact that how the public views the United States Supreme Court frames a lot of their perception of all other courts, a lot of judges, lawyers and those interested in courts could be far more complacent. But the fact is, attitudes or impressions formed about justice in America are driven by how the Supreme Court conducts itself. Regrettably the Supreme Court does not seem particularly alarmed by the situation. They should be. Justices Scalia and Ginsburg were in the news pretty frequently this summer. They share common interests; both like opera and both think there are judicial activists on the Court. Their differences are profound since each sees the other as the judicial activist.

And so, as silly as it may seem, perhaps before the new term begins there should be a Supreme Court retreat. The vast majority of courts in this nation periodically take stock and some even adopt strategic plans. The United States Supreme Court may not need a strategic plan, but it does need to change.

How the Court conducts oral argument has changed and, according to Justice Thomas, not for the better. In the 1990s, when he was first named to the bench, during oral arguments one member of the Court would ask a series of questions and then other members of the Court could take a turn asking, and all would listen. “That is helpful,” he said. “And it also allowed people each to have a turn to talk.” The more recent pattern of the Supreme Court is for justices to frequently and at times incessantly interrupt the lawyers presenting their arguments.

Too little transparency

The justices are good and decent people, but they are lost when it comes to being open and transparent to the public. Much of this nation gets its fill of the news from television. But rather than see the Supreme Court in action, the public sees a television reporter standing in front of the very impressive Supreme Court building. (Did you ever wonder if that backdrop is real or just something they call up in the television studio?) There are more than 300 million Americans, but only 500 seats in the Supreme Court gallery. If you don’t get one of those precious seats, you will not see how the Court conducts its business.

Even if more people read Supreme Court commentators like Linda Greenhouse, the fact is large segments of our society distrust the media just as much as they distrust government institutions. The public today distrusts what it cannot observe. This is a democracy. It is time to televise Unites States Supreme Court proceedings.

Justices write and promote their books; they lecture and often participate in teaching events and interviews. Justices Thomas and Sotomayor may have strong philosophical differences, but they both knew the value of appearing on “60 Minutes” when their books were published. There was a time when Justice Scalia did not allow television coverage of the many talks he gives to legal groups but, just like Justices Thomas and Sotomayor, he too appeared on “60 Minutes.”

Televise proceedings

Even if we disagree with many of their rulings, there is reason to admire just how smart and dedicated these nine people are. The issue is not with any of the justices as individuals. The American people are entitled to see the justices in action. The end result of televised proceedings will at a minimum stem the long-term decline of the Court’s public approval and may lead to greater public understanding of the complexity of the issues before the Court. Even if the television ratings are not very good, the bottom line in a democracy the people have a right to see how government works.

Finally, the Supreme Court retreat needs to discuss improving the end product, i.e., their written opinions. When Brown v. Board of Education was decided, the opinion was written briefly enough that the newspapers of the nation could (and did) print the opinion in full. Chief Justice Warren understood not just the desirability of a unanimous opinion, but one which the American public could read themselves. In 1954 there was no Internet. When Brown was decided, you needed to go to a law library unless newspapers printed the opinion in their regular editions.

The Affordable Health Care decision was nearly 200 pages. In recent terms the number of United States Supreme Court cases accepted and decided have significantly been reduced, but the number of words has grown exponentially. The public has a right not just to see how the Supreme Court does its business, but read the orders too.

Kevin Burke is a trial judge on the Hennepin County District Court and past president of the American Judges Association. 

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