This is the third piece in a series on what I believe the court can, and should, do better.
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Over the years, the Supreme Court found its home in several places, following Congress from New York to Philadelphia, then to the Capitol building in Washington, D.C., before finally settling at One First Street N.E. There was a brief exception. The justices temporarily sat at the U.S. Court of Appeals for the D.C. Circuit during the anthrax scare of 2001. During the pandemic, the court started to live-stream the audio of oral arguments, but cameras are still prohibited. And the press is only allowed to take group photographs of the justices in the courtroom when a new member joins the court. These “class” photographs are limited to exactly two minutes – they are actually timed with a stopwatch. Most of the justices will assemble at a presidential inauguration, and fewer will attend the State of the Union address. But during these events, the justices (typically) remain silent. As Justice Samuel Alito explained, they have to sit quietly like “potted plants.”
The only way to see all of the justices in action is by attending oral argument in Washington D.C. Seats are very hard to come by, even with the new lottery system. For high profile cases, people have to camp outside of the court for several days, often in inclement weather. Perhaps by design, the justices thus maintain an aura of mystique, and their important work remains largely unseen. (To be sure, when a justice has a book to sell, he or she will go on a press tour and give book talks. But these solo events do not expose the justices as a collective to the citizenry.)
One obvious remedy would be to add cameras in the Supreme Court. This idea has been bandied about many times, and I have little to add. Even with or without cameras there may be another way to improve access to the Supreme Court: the justices should take their show on the road. At regular intervals, the justices should hold oral arguments at different courthouses throughout the country. The people outside the capital district should see how the court functions. It is very common for lower courts to hold oral arguments in different locations, including at law schools. The justices should do the same. And the bulk of the tickets should be available to the public, either through a lottery or some other neutral method.
The most likely sites would be the courthouses where the federal courts of appeals sit en banc, or all together: the U.S. Court of Appeals for the 1st Circuit sits in Boston, the U.S. Court of Appeals for the 2nd Circuit sits in Manhattan, the U.S. Court of Appeals for the 3rd Circuit sits in Philadelphia, the U.S. Court of Appeals for the 4th Circuit sits in Richmond, the U.S. Court of Appeals for the 5th Circuit sits in New Orleans, the U.S. Court of Appeals for the 6th Circuit sits in Cincinnati, the U.S. Court of Appeals for the 7th Circuit sits in Chicago, the U.S. Court of Appeals for the 8th Circuit sits in St. Louis, the U.S. Court of Appeals for the 9th Circuit primarily sits in San Francisco, the U.S. Court of Appeals for the 10th Circuit sits in Denver, and the U.S. Court of Appeals for the 11th Circuit sits in Atlanta. These cities fully represent the different regions of our glorious republic. (The D.C. Circuit, which is a few blocks from the Supreme Court, does not count.) The justices would see New England, the Mid-Atlantic, the South, the Deep South, the Midwest, the West, and what Justice Antonin Scalia called the “vast expanse in-between.” All of these courthouses are equipped with benches to seat the nine members of the Supreme Court. There would also be chambers where the justices and their clerks could work. These federal buildings are already secure, and could provide the appropriate accommodations for the justices.
When the justices visit a city, they should perform official good will missions. Justices should visit law schools and other educational institutions. Even better, the justices should go in pairs, so the public can see how justices who do not agree with each other can still engage in a civil fashion. Justice Elena Kagan’s recent congressional testimony with Justice Amy Coney Barrett provides a model of civility. These events would not be book talks. I find it problematic that justices, or at least their staff, have apparently prodded groups to purchase books when hosting them. The purpose of these events would simply be to speak to the next generation.
But the purpose of these missions is not just to speak. To borrow from Barrett’s new book, the justices should also listen. The justices should hold private meetings with local constituencies to hear how the law affects them. Groups could include government officials, police departments, prosecutors, civil rights groups, public defenders, and others. I don’t know how often the justices hear from regular folk about the law. The justices largely reside in their own bubbles. These missions would be an effort to pierce those bubbles. Still, these gatherings could become opportunities to grandstand, so all recording devices would be strictly prohibited.
The justices should also meet with the local press. These reporters might have questions that members of the Supreme Court press group do not. On book tours, the justices will sometimes answer pre-approved questions or speak to favorable outlets. Justice Ketanji Brown Jackson pals around on The View while Barrett chats on Fox News. The justices should not be so guarded. If a reporter asks a question that is inappropriate, the justice can decline to answer. But there is always much that can be said. And I think the press would be impressed with how carefully the justices answer questions.
How often would the justices sit outside of Washington, D.C.? To start, one sitting per year could be held in a different city. It would take about a decade to cross from sea to shining sea. But if the court follows my lead, and hears more cases, and sits year round, they could visit many courts. Admittedly, these trips would present somewhat complex logistics, and require congressional appropriations. Yet I am confident there would be a bipartisan groundswell of support to get the justices out of the beltway.
