For a long time, I’ve agreed with Justice Breyer* that cameras shouldn’t be put in the U.S. Supreme Court. Cameras change things in a qualitative way, in our fame-obsessed culture, and in addition to altering the dynamic of the legal process, I think it would increase the security risk. It would encourage grandstanding, discourage honest questions and answers, and nudge the Supreme Court in the direction that Congress and the Executive Branch have already gone—pushing all substantive proceedings into the background and fostering the development of a stylistic façade. Many find these arguments weak, and they’ve got pretty strong arguments: much of what the Court already does is stylistic façade, they say, and the Court has always done its really substantive proceedings in secret anyway. Still, on this subject, I’ve always tended to traditionalism.
That all changed last week, when the Supreme Court issued a falsified transcript and audio recording of the oral arguments in Octane Fitness v. Icon Health & Fitness. This isn’t an exaggeration—the Court itself has now acknowledged that the recording is falsified, And I suspect the transcript is, too.
By that I mean, the transcript and recording purport to be accurate descriptions of what was uttered in the courtroom, but prior to being issued, at least one of those records was altered on the orders of Court personnel to delete material that the personnel decided to withhold, and then released without any acknowledgement of alteration. Only later did the Court admit that this had occurred—although the records still lack any acknowledgement of their alteration.
You may think this is a minor matter, and of course the episode itself is rather trivial. The “protestor” is pretty obviously wrong on the substance (Citizens United was clearly correctly decided) and his form of protest was childish, unproductive, and offensive.
Nevertheless, it occurred. It occurred during a hearing and was recorded by the official recorders. The Court’s rewriting of an official government record of proceedings, without acknowledgment of that alteration, is without justification or authority, and the underlying principle is absolutely critical.
[Update: To be clear, the Court's spokesman said the recording had been "redacted." It was not. A redacted document makes clear to the reader that certain parts are withheld. Here, the record was falsified, meaning, altered in a way so as to disguise the fact that material was removed. Redacted would be bad enough. Here the record was secretly altered.].
Our Constitution guarantees public access to court proceedings because the Founders had had experience with secret court proceedings, and knew how dangerous they were. The Constitution guarantees a “public” trial, and the First Amendment guarantees the right to publicize the events that occur in trials, for this reason. If the Court can alter the recordings of its proceedings simply to remove material that it would prefer not appear on the record, then what else can it do? What other transcripts might the Court alter sua sponte?
Federal law generally prohibits custodians of government records from falsifying them. 18 U.S.C. § 2071(b) provides that any person who “having the custody of any such record, proceeding…document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same,” shall, in addition to being subjected to criminal penalties, “forfeit his office and be disqualified from holding any office under the United States.” Now, I’m not saying that Court personnel are guilty of a crime—in fact, they are not, since the crime here is a specific intent crime, and that’s pretty clearly not applicable here. My point is that any alteration of the actual record, no matter how minor—even if it was changing the audio recording to match what the court reporter transcribed—runs counter to the spirit of our legal system through and throughout.
I repeat: this particular episode is trivial. But under no circumstances whatsoever should we in the legal profession—or citizens generally—tolerate an alteration of the records of the proceedings in the Supreme Court (or any court), no matter how trivial the situation might be. That is doubly the case when the alteration is done by the courts themselves. That is a power that has been abused far, far too often to be taken lightly, no matter what the facts might be.
Some may think that deleting the audio is necessary to discourage future interruptions and outbursts in the courtroom. I agree with Josh Blackman (whose blogging on this episode has been excellent, by the way) that this is not likely to work. But be that as it may, concerns for courtroom deportment simply cannot justify action that undermines the integrity of our legal institutions. I cite as standing for that proposition the Supreme Court’s decision in Cohen v. California, which said that a man could wear a jacket saying “Fuck the Draft” in a courthouse.* “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance,” declared the Court. But these things are “necessary side effects of the broader enduring values which the process of open debate permits us to achieve…. [T]he State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.” For parallel reasons, I say that discouraging childish outbursts in the courtroom is no justification for falsifying a government document purporting to record the proceedings in the highest court in our land.
Symbolism is often important because it serves as the first warning of more substantive threats to come. One would think that Chief Justice Roberts would be particularly sensitive to this, given his reported devotion to the Court’s reputation. There’s another Supreme Court justice who comes to mind, though. A few years ago, he complained about Supreme Court policies that—even if only symbolically—detract from “the ideal that anyone in this country may obtain meaningful justice through application to this Court.” It was Justice Steven Breyer, and the occasion was the Court’s decision to permanently close the giant bronze doors in the front of the building. “To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself,” Breyer wrote.
I find dispiriting the Court’s decision to refuse to permit the public to enter. I certainly recognize the concerns identified in the two security studies that led to this recent decision…. But potential security threats will exist regardless of which entrance we use. And, in making this decision, it is important not to undervalue the symbolic and historic importance of allowing visitors to enter the Court after walking up [Cass] Gilbert’s famed front steps. To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world — including those, such as Israel’s, that face security concerns equal to or greater than ours — has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, tech no logical advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.
How much more important is it that the public mind rest assured that the records of the proceedings in all of our courthouses accurately describe the words spoken and actions taken within those courthouses? Far more important than the symbolism of the Court’s marble steps is the 400-year-old tradition in the Anglo-American common law that remembers the horrors of Star Chamber and pledged—by adopting a constitutional protection for open and public proceedings—never to allow that to happen again. As the Court itself has observed, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a [court proceeding] is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.” Secret proceedings are bad enough for public faith in our institutions. But secretly redacted proceedings? I find dispiriting the Court's decision to alter a public document purporting to record the proceedings of a Supreme Court hearing. I certainly recognize the concerns of security and courtroom deportment. But threats will exist regardless of efforts to hide public facts from view. And, in making this decision, it is important not to undervalue the symbolic, historic, and constitutional significance of tampering with the public reliance on official court records.
For these reasons, I now favor cameras in the Supreme Court chamber—and, equally important, those cameras should be operated by an independent, non-government entity, such as C-SPAN or a news channel. If the Court cannot be trusted to faithfully report its own proceedings, then it no longer deserves public confidence that its records describe the truth. The Court should also immediately restore the original, unabridged audio recording to its website, and, if the written transcript was altered, publicly identify it as such. Anything less—though it might seem minor—is a betrayal of the Court’s moral, legal, historical, and constitutional obligation to report to the public what actually happened.
*-Oops. I originally said courtroom.
Update: Obviously the Court had no evil intent here. I don't mean to suggest otherwise. But the Supreme Court justices, of all people, should be conscious of the danger of bad precedents, and they've set a terrible one here.
Update: when I originally wrote this, I confused Justice Breyer with Justice Souter; the latter, not the former, as I was remembering, famously said he'd see cameras in the Court "over my dead body." Justice Breyer, however, has indicated that he's opposed to cameras now, but would be open to the idea, if he saw studies of their effects.
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