Chief Justice’s Fall Highlights Limited High Court Transparency

July 8, 2020, 9:36 PM

The Supreme Court, which Chief Justice John Roberts has called “the most transparent branch in government,” responded to the Covid-19 pandemic by livestreaming remote arguments, which allowed people normally shut out of the court to hear arguments for the first time ever, in real time.

But the pandemic has also left the already-cloistered justices even more out of sight than usual, a fact laid bare when the court acknowledged this week that Roberts was hospitalized last month after a fall—and only after the Washington Post inquired.

The court as an institution is often reluctant to shine more light on how it operates, whether in refusing to disclose which justices vote to take up individual cases and how they vote on emergency orders, or in keeping cameras out of the courtroom.

When it comes to their own health, the justices decide for themselves how much to share. Roberts clearly had no intention of promptly disclosing his late June fall while out walking that left him hospitalized for a night with a head injury requiring sutures.

The incident, court watchers say, is particularly problematic, coming as it did during a pandemic when the justices are already out of view and wrapping up a term full of hot button issues. Decisions due Thursday morning implicate whether President Donald Trump’s tax returns might become public before the 2020 election.

“The Court is increasingly being drawn into the politics of the day, so anything it does, or doesn’t do, that may erode the public’s trust is concerning,” said court watchdog Fix the Court‘s Gabe Roth. “Given this dynamic, the Chief Justice shouldn’t hide the fact he cracked his head open.”

The chief justice’s head was seen “covered in blood” at a Maryland country club on June 21, the Post reported Tuesday.

Supreme Court spokeswoman Kathy Arberg had said in a press email on June 25 that the justices were all doing well. As requested by reporters after the start of the pandemic, the Public Information Office had included updates on whether they had been impacted by the coronavirus as part of guidance about forthcoming opinions and orders.

In response to questions about why the court hadn’t disclosed Roberts’ hospitalization, Arberg said in an email Tuesday, “The injury was not significant; he stayed overnight out of an abundance of caution and went home first thing in the morning.”

Lauding Transparency

Roberts has made a point of lauding the court’s transparency during his public speeches.

“It’s not as if we are doing this in secret,” he said at the Fourth Circuit Judicial Conference in 2018. “We are the most transparent branch in government in terms of seeing us do our work and us explaining what we are doing.”

He was referring to the fact that the justices issue detailed opinions explaining their rulings. The nine justices wrote seven opinions in a recent case over religious school funding.

Transparent isn’t the word many outside observers would use to describe the court that routinely doesn’t explain why it rejects scores of appeals or why some justices recuse from some cases.

In addition to resisting in-court cameras, same-day argument audio has been the exception rather than the rule. May’s historic livestream session broke new ground, though the justices have given no indication whether they may continue after the health crisis ends.

The judiciary is opaque by design, said Charles Gardner Geyh, an Indiana University law professor who studies judicial ethics.

“Judges are placed aloft on benches and attired in nondescript robes in an effort to depersonalize and distance themselves from those they are judging. It’s an antiquated notion, but it has served the judiciary well, in the sense that because it is the least conspicuous branch it has avoided problems that come with the limelight,” Geyh said.

From the perspective of the court, “maintaining a low profile” is part of the reason that “public confidence in the Supreme Court far exceeds that for the president or Congress,” Geyh said.

Justices’ Health

The justices’ approach to institutional transparency can become problematic when it extends to matters of their own health, said Amanda Frost, professor at American University Washington College of Law who studies judicial ethics.

“Obviously the public should not be given unnecessary private details about the justices’ health problems, but hospitalizations during a pandemic are sufficiently serious to require disclosure,” Frost said. “The public needs to know both if justices are fit to serve and whether their health conditions might lead to retirement or death in the near future.”

Noting that the Supreme Court only confirmed Roberts’ fall and hospitalization weeks after the incident in response to a media inquiry, Duke Law professor Marin Levy said she worries that “such actions will erode public confidence and trust.”

These concerns “are heightened in the midst of the pandemic,” said Levy, who studies the federal courts. “To begin, we aren’t seeing the justices out and about as usual, and so we have less of an independent sense of how they are doing,” she said. “Additionally, there are real concerns that a justice will test positive for COVID—something that is particularly worrisome given the ages of many of the justices. So these factors together make the case stronger for full disclosure of significant health issues at this time.”

Roberts v. Ginsburg

Some justices are more forthcoming about their health than others.

Justice Sonia Sotomayor write a book inspired by her longtime struggle with diabetes.

The public is well-aware of Justice Ruth Bader Ginsburg’s serial battles against cancer.

Of the dozen or so press releases regarding the justices’ health since 2002, most involve Ginsburg, who in May disclosed that she’d undergone treatment for a gallbladder condition.

Roberts’ recent reticence, on the other hand, evokes the quiet battle that his predecessor, Chief Justice William Rehnquist, fought against thyroid cancer. Rehnquist, for whom Roberts clerked as a young lawyer, died while still serving on the court in 2005. Before the recent fall, Roberts had suffered two known seizures, one of which occurred after he succeeded Rehnquist on the court. Doctors said his recent fall wasn’t seizure-related, the court said.

Judicial ethics scholar Arthur Hellman said it’s important not to denigrate the importance of medical privacy.

“But somebody who accepts an important position in public life gives up some aspects of privacy,” the University of Pittsburgh School of Law professor emeritus said.

“We’re not talking about district court judges or court of appeals judges,” Hellman went on. “There are only nine justices and only one chief justice, and they play a special role in the public life of the country.”

He said Ginsburg’s forthrightness is “a good model for the other justices to follow.”

—With assistance from Greg Stohr of Bloomberg

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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