Adrian: Secret Justice

Sep 27, 2018

Marbury v. Madison, decided in 1803, established the American Judiciary as a co-equal branch of government.

It cemented the power of judicial review, enabling the courts to check the powers of the legislative and executive branches by striking down statutes, rules and actions antithetical to the U.S. Constitution.

But despite this co-equal status, the judiciary is steeped in what at times appears to be antiquated tradition and secrecy - perpetuated by the relative slowness it takes to change law though the judicial process, and perhaps contributing to the current showdown in Washington.

Maybe the most obvious example is the prohibition on photography and video cameras in almost all Federal Courtrooms, including the Supreme Court – leaving the proceedings to be visualized through artist renderings that may be quaint, but not very useful.

Our current Supreme Court justices have a variety of opinions on whether or not cameras should continue to be banned. In 1993 Justice Ginsburg admitted she didn’t mind having proceedings televised, saying “I think it would be good for the public.” And Justice Kagan has suggested that cameras “would make people feel so good about this branch of government and how it’s operating ...”

Another likely factor is the use of Latin in the courtroom. Legal decisions are full of code – and nowhere is the code more apparent than in the use of ancient Latin phrases. For example, judges often review documents and sometimes discuss cases with attorneys “in camera” which roughly translates to – in the judge’s private chambers. And both the language and the action it describes can be opaque. Some argue in favor of this lack of transparency by saying the need for secrecy is “res ipsa loquitur” – meaning “it speaks for itself” - but I’m not so sure.

Wearing black robes, addressing the judge as “your honor” and elevating the judge or justices above the courtroom add to the atmosphere of secrecy and deference. And while this is all quite intentional, perhaps we should take a fresh look at whether it’s still really necessary.

In any case, we can be grateful that neither jurists nor attorneys in this country have to wear the powdered wigs still favored in the British Commonwealth.