Document Type

Article

Date

2012

Keywords

Supreme Court, transparency, openness, digital information, internet, judicial legitimacy, politics, impartiality, open secret

Language

English

Disciplines

American Politics | Constitutional Law | Courts | Judges | Law and Politics | Law and Society | Legal Studies | Public Law and Legal Theory | Rule of Law | Social Influence and Political Communication

Description/Abstract

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time.

Additional Information

Keith J. Bybee is Paul E. and the Hon. Joanne F. Alper ’72 Judiciary Studies Professor at Syracuse University College of Law and Professor of Political Science at the Maxwell School of Citizenship and Public Affairs, Syracuse University

Creative Commons License

Creative Commons Attribution 3.0 License
This work is licensed under a Creative Commons Attribution 3.0 License.