A plea for transparency

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

As the first Monday in October and the new Supreme Court term approach, it is an occasion to make a plea for greater transparency. Unlike so much surrounding the court right now, greater openness is something both liberals and conservatives should champion. Although obviously some aspects of the justices’ work must remain confidential, much of the secrecy surrounding the court seems unnecessary and even counterproductive.

Broadcast announcement of opinions

When the Supreme Court releases decisions in cases that have been argued, the rulings are announced from the bench. Custom is that the justice who wrote the majority opinion provides a brief oral summary of the ruling. Sometimes justices also choose to read summaries of concurring and dissenting opinions from the bench. Justices usually read dissenting opinions only in particularly high-profile cases where they strongly disagree with the court’s decision. For example, since coming on to the court in 2005, Chief Justice John Roberts only once has read a dissent from the bench, in Obergefell v. Hodges, which held unconstitutional state laws prohibiting same-sex marriage. In Trump v. CASA, decided on June 27, 2025, Justice Sonia Sotomayor read an impassioned dissent from the court’s holding that federal courts cannot issue nationwide injunctions.

Sometimes, justices say things from the bench that are not in their written opinions. In the 2007 case of Ledbetter v. Goodyear Tire & Rubber, which restricted recovery in pay discrimination suits, Justice Ruth Bader Ginsburg’s statement from the bench had key differences from her written dissent. Likewise, in Obergefell v. Hodges, Justice Antonin Scalia in his oral dissent said things that were not in his written dissent. In the 2023 case of Students for Fair Admissions v. President and Fellows of Harvard College, it was Sotomayor who gave a vehement dissent from the bench that was somewhat different from her written opinion.

During and then after the COVID-19 pandemic, the Supreme Court adopted the practice of live audio broadcasts of oral arguments. But this does not include broadcasting the announcement of decisions. There is no good reason for not broadcasting these, as well. There is nothing secret about what a justice says in open court in front of reporters and all who are gathered.

Televise oral arguments

I wish that the court would go even further than broadcasting the announcement of decisions, and televise all of its proceedings. The justices are deciding issues of enormous importance for people’s lives and society. They are a branch of the government and their proceedings are open to the public.

There is also no basis for the concern that televising will alter their conduct. Many federal courts of appeals livestream and archive all oral arguments. They have not seen any problems with this. I have argued several cases in the Supreme Court, and I cannot imagine lawyers paying attention to the cameras. During oral argument, lawyers are focused on the intense questioning from the justices.

Besides, the lawyers and justices know that there already are audio broadcasts of arguments; adding video likely would not change things. Sometimes, C-SPAN will broadcast the audio of an oral argument and show still photographs of the justices and lawyers. What really is the difference between that and watching the arguments themselves?

If anything, I believe that the court’s legitimacy would be enhanced by televising its proceedings. If people watched the arguments, they would see nine highly intelligent, well-prepared justices struggling with enormously difficult issues.

But I see little chance that the justices will choose to televise their proceedings. The justices seem unalterably opposed to cameras in their courtroom. That, though, should not preclude a more modest reform: have audio broadcasts and recordings of every public proceeding that occurs in the courtroom at the Supreme Court.

Announcing votes

Last term, the Supreme Court granted review – with full briefing and oral argument – in a major case concerning the religion clauses: Oklahoma Statewide Charter School Board v. Drummond.

In a series of cases, the Supreme Court has held that it violates free exercise of religion for the government to deny aid to religious schools that it provides to private secular schools. But what about charter schools, which are created pursuant to state law and publicly funded, but operated by private entities? Almost every state allows charter schools, but requires that they be secular.

The Oklahoma Supreme Court ruled that allowing religious charter schools would violate the Oklahoma Constitution. The U.S. Supreme Court granted review in Drummond to decide whether excluding religious charter schools from state funds violates the free exercise of religion under the First Amendment.

Justice Amy Coney Barrett was recused. She offered no explanation for why she chose not to participate. (Here, too, I question the lack of transparency on the court. Justices should explain why they are disqualified.)

After oral arguments, the court announced that it was split 4-4, which left the state court decision in place. The justices didn’t reveal who voted each way. But why not? It is a vote on a merits case. The court is rendering a decision, albeit one by a tie. Nothing confidential is revealed by disclosing how each justice voted, just as this is revealed for all other merits cases.

I would go even further in a plea for openness: the court should disclose the votes on petitions for writs of certiorari (that is, whether they decide to hear a case or not). When the court grants certiorari, there is no way to know which justices voted to take the case. And when the court denies certiorari, there is no way to know who wanted to hear the matter unless a justice writes a dissent from the denial of certiorari. Again, I never have understood the need for secrecy here.

Announcing decisions

Except for the last day of the term, there is no way to know what decisions will be released on a particular day. Why not have the court announce a day in advance which cases will be released on the following day? Some state courts do this. It would help the media – which is crucial to informing the public – in planning their coverage.

Admittedly, it would lessen the suspense of not knowing what cases will be announced on a specific day. But that is suspense that serves no purpose (well, other than perhaps to make SCOTUSblog’s live blog more exciting). It also creates unnecessary stress for parties and litigants as each opinion day could be the one where the decision in their case is announced.

Clearer explanation of opinions

It may seem more radical, but why doesn’t the Supreme Court accompany each decision with a brief description in plain English of what the case held? There already is a syllabus, but it often is impenetrable, especially for those not already familiar with the case. I am suggesting a much clearer statement, that can be easily understood, describing the decision. It, too, can be accompanied by a statement, as is the syllabus, that it is not part of the decision in any way.

Again, some states have done this. It allows people to understand what the court says it has done rather than forcing the public to rely entirely on media explanations.

Conclusion

Change in the Supreme Court is always difficult. But in recent years, the justices have altered how they conduct oral arguments, and they now have audio broadcasts of arguments. It is time for them to go much further in providing transparency and openness.