I am one of the hundreds, if not thousands, of people dutifully locked to the indispensible Scotusblog each possible decision day waiting for the Supreme Court to announce its ruling in the critical money in politics case McCutcheon v. FEC. It’s an emotional roller coaster.
The Court gives no indication when a case will be decided until the justices announce an opinion from the bench. The public often doesn’t even know when opinions will be delivered until a day or two in advance. So, since mid-January, my colleagues and I have played a repetitive game of “hurry up and wait.”
This is certainly an inconvenience—and a time suck—for me and many others. But, there’s a bigger issue at stake.
One of the functions of the Supreme Court is to engender an ongoing national conversation about what the law is in the United States—what our Constitution requires and (usually of somewhat less interest to the public) what statutes mean. Some have described this function as leading a national seminar on the law, although I am personally ambivalent about that analogy because I don’t believe the justices have a monopoly on legal meaning.
The Court’s current practice hinders, rather than serves, that key objective.
When an important decision is announced, stakeholders hustle to kick off a predictable process: read and digest the decision; determine a public posture; work to shape public opinion about the case in favorable ways, often through media channels; and (for some) organize the public to respond. This is exactly how we’d want our chaotic mix of citizens, advocacy organizations, and others with a stake in the outcome to respond in a democracy.
But, the element of surprise hinders both the organizing and presentation of legitimate public reaction.
First, it’s hard to organize ordinary citizens to express their views about a Supreme Court case in real time when you don’t know when that case is coming. Public Citizen and others are doing yeoman’s work to provide opportunities for Americans across the country (140 locations and counting) to speak out the day that McCutcheon comes down. But, it’s hard to drive turnout on a few hours notice. If their staff had even a day or two of advance warning, they could solidify events, make confirmation calls, do all the unglamorous work known as “organizing” that has, for our entire history, played a critical behind-the-scenes role in public demonstrations of protest or support.
Second, the media plays a key role in imposing some order on the cacophony and delivering a coherent narrative on the Court’s decisions to the public. What did the justices say and why? Does it accord or conflict with how most Americans view the Constitution? Who will this help or hurt? What are the possible spillover effects on seemingly unrelated issues? Is this an expected outcome, or a sharp break from past rulings?
But, again, surprise only hampers. Reporters can’t do extra research a day or two in advance to give their initial articles more richness and context. News shows can’t pre-book guests to explicate the decisions to their audiences. And day-of stories (when interest peaks) do not benefit from the results of all of the relevant players putting their best, most compelling feet forward because of the factors cited above. Some would call this “spin” but it’s also known as effective advocacy in a marketplace of ideas. We don’t hold legal trials with no notice to catch lawyers off guard—we give them time to present the best case for their clients in the hope that the truth will win out.
In the end, the public just doesn’t get as clear and cogent a picture as we could if all of the players had even a few days to prepare. Instead, we end up with a series of missed opportunities adding up to an impoverished national debate around what our Constitution means in 2014 and beyond.
Some may object that setting a decision date will intensify speculation and may increase the likelihood of pre-announcement leaks or attempts to influence the decision. On the latter (a serious objection) I would suggest that the justices announce a decision day only after the case has already been decided and the outcome is hard-baked.
On increased speculation and a marginal increase in the chance of leaks, I say “so what?” First, the Court has proven remarkably impervious to leaks thus far (“those who talk don’t know and those who know will never talk”) and it’s not clear why this would change with a few days’ notice for impending announcements. Second, while a leak may enable some shady stock dealings it hardly seems like a national security threat for someone to find out on Monday what is about to be fully public on Wednesday. Finally, if this starts to happen rampantly the Court can always go back to surprise announcements. But, why not give transparency a try?
I’d like to stop obsessively monitoring Scotusblog every week for the McCutcheon decision. More important, I want my fellow citizens to fully understand the decision (and the fundamental threat it may present to our democracy) when it comes out.
So, come on Justice Roberts. How about striking a blow for democracy for a change?