Berl Falbaum
Now that the U.S. Supreme Court has inexplicitly decided that a president like Donald Trump (all presidents) has partial immunity from prosecution for crimes committed while president, we might give some thought to existing immunity granted the entire judicial branch of our government.
This issue has escaped much-needed attention and been ignored for some 200+ years. The Court’s decision gives us an opening to address this subject.
I am referring to the fact that the justices, indeed all judges at very level, are protected by a baffling custom of not having to explain their decisions to the public.
While the judiciary is an equal branch of our government, it operates with a privilege that the other two -- the executive and legislative branches -- do not enjoy.
To be more specific:
--Why shouldn’t justices be required to explain why they decided not to hear a case?
--Why shouldn’t they be asked to elaborate and explain their rulings in either interviews with reporters or at press conferences?
--Why should they “get away” with overturning precedents without a word of explanation to the public?
The questions are endless, of course, but no one seems to be disturbed by this “undemocratic” phenomenon while it hardly serves the public interest.
It would be refreshing and educational to hear a judge presiding over a criminal trial explain why he/she excluded certain evidence or supply explanations for other crucial decisions.
When I headed the Detroit News City-County Bureau (many moons ago), one of my reporters covered the courts. I frequently asked him to call a judge and ask for an explanation of a ruling, and the reporter generally responded, “He won’t even answer the phone.”
I found that wrongheaded then as I do now.
A “no comment” has never bolstered the reputations of members of the legislative and executive branches and it does nothing to improve the stature of courts.
Consider, for a minute, a president refusing to answer why he issued an executive order or a lawmaker maintaining silence on the reasons for introducing legislation or why he/she voted for or against a pending bill.
There would be all hell to pay.
In its 1964 landmark ruling in New York Times v. Sullivan which dealt with defamation pertaining to public officials and pubic figures, Justice William J. Brennan Jr., writing for a unanimous court in dismissing a libel case, stated:
“…debate of public issues should be uninhibited, robust and wide-open…”
Let us say “hear ye, hear ye” to that.
Thus, it follows logically that if the Supreme Court were to implement the philosophy expressed in New York v. Sullivan and all the other courts were to follow with less “secrecy” about their rulings, it would produce a more open debate on public issues and that, certainly, would be in the public interest.
Another benefit would be a restoration of trust in the Court which in recent years, according to a variety of polls, has decreased along with respect for the judiciary. In an April poll, only 36 percent of Americans approved of the Supreme Court’s performance while 51 percent disapproved. In another poll, 52 percent disapproved and only 40 percent approved.
That does not serve us well. It is imperative that the judiciary, the final arbitrator of the law, not decide crucial issues under a cloud of distrust, doubt and misgivings. Secrecy breeds suspicion.
I read the code of conduct for judges and while it demands that they not discuss pending cases, the code is silent on the issue of what they may say after a case has been decided. The code does not deal with that at all.
I have no problem with justices/judges, meeting behind closed doors to deliberate and argue a case. They need privacy to permit a free exchange of ideas. But once decisions have been made, the need for secrecy ends. It’s over and the public, which has to live under final rulings, for better or worse, should be told what led to the outcome. It deserves answers and accountability. Such openness is not a detriment; it’s a benefit for democracy.
What if the nine Supreme Court justices sat down with reporters and both sides -- the six in the majority and the three dissenters -- explained their reasoning in the Trump immunity case. I think it is safe to conclude the country would be much more receptive to the outcome. Although, this one would be hard to swallow regardless of the “justification.”
I am tempted to start a campaign to change the system but I’m afraid I may be held in contempt of court.
—————
Berl Falbaum is a longtime political journalist and author of several books.
This issue has escaped much-needed attention and been ignored for some 200+ years. The Court’s decision gives us an opening to address this subject.
I am referring to the fact that the justices, indeed all judges at very level, are protected by a baffling custom of not having to explain their decisions to the public.
While the judiciary is an equal branch of our government, it operates with a privilege that the other two -- the executive and legislative branches -- do not enjoy.
To be more specific:
--Why shouldn’t justices be required to explain why they decided not to hear a case?
--Why shouldn’t they be asked to elaborate and explain their rulings in either interviews with reporters or at press conferences?
--Why should they “get away” with overturning precedents without a word of explanation to the public?
The questions are endless, of course, but no one seems to be disturbed by this “undemocratic” phenomenon while it hardly serves the public interest.
It would be refreshing and educational to hear a judge presiding over a criminal trial explain why he/she excluded certain evidence or supply explanations for other crucial decisions.
When I headed the Detroit News City-County Bureau (many moons ago), one of my reporters covered the courts. I frequently asked him to call a judge and ask for an explanation of a ruling, and the reporter generally responded, “He won’t even answer the phone.”
I found that wrongheaded then as I do now.
A “no comment” has never bolstered the reputations of members of the legislative and executive branches and it does nothing to improve the stature of courts.
Consider, for a minute, a president refusing to answer why he issued an executive order or a lawmaker maintaining silence on the reasons for introducing legislation or why he/she voted for or against a pending bill.
There would be all hell to pay.
In its 1964 landmark ruling in New York Times v. Sullivan which dealt with defamation pertaining to public officials and pubic figures, Justice William J. Brennan Jr., writing for a unanimous court in dismissing a libel case, stated:
“…debate of public issues should be uninhibited, robust and wide-open…”
Let us say “hear ye, hear ye” to that.
Thus, it follows logically that if the Supreme Court were to implement the philosophy expressed in New York v. Sullivan and all the other courts were to follow with less “secrecy” about their rulings, it would produce a more open debate on public issues and that, certainly, would be in the public interest.
Another benefit would be a restoration of trust in the Court which in recent years, according to a variety of polls, has decreased along with respect for the judiciary. In an April poll, only 36 percent of Americans approved of the Supreme Court’s performance while 51 percent disapproved. In another poll, 52 percent disapproved and only 40 percent approved.
That does not serve us well. It is imperative that the judiciary, the final arbitrator of the law, not decide crucial issues under a cloud of distrust, doubt and misgivings. Secrecy breeds suspicion.
I read the code of conduct for judges and while it demands that they not discuss pending cases, the code is silent on the issue of what they may say after a case has been decided. The code does not deal with that at all.
I have no problem with justices/judges, meeting behind closed doors to deliberate and argue a case. They need privacy to permit a free exchange of ideas. But once decisions have been made, the need for secrecy ends. It’s over and the public, which has to live under final rulings, for better or worse, should be told what led to the outcome. It deserves answers and accountability. Such openness is not a detriment; it’s a benefit for democracy.
What if the nine Supreme Court justices sat down with reporters and both sides -- the six in the majority and the three dissenters -- explained their reasoning in the Trump immunity case. I think it is safe to conclude the country would be much more receptive to the outcome. Although, this one would be hard to swallow regardless of the “justification.”
I am tempted to start a campaign to change the system but I’m afraid I may be held in contempt of court.
—————
Berl Falbaum is a longtime political journalist and author of several books.
