Open Secret: Why the Supreme Court Has Nothing to Fear From the Internet

25 Pages Posted: 26 Nov 2012

See all articles by Keith J. Bybee

Keith J. Bybee

Syracuse University - College of Law; Syracuse University - Maxwell School of Citizenship and Public Affairs

Date Written: November 25, 2012

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 underderstanding 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.

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

Suggested Citation

Bybee, Keith James, Open Secret: Why the Supreme Court Has Nothing to Fear From the Internet (November 25, 2012). Chicago-Kent Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2180631 or http://dx.doi.org/10.2139/ssrn.2180631

Keith James Bybee (Contact Author)

Syracuse University - College of Law ( email )

321 Eggers Hall
Syracuse University
Syracuse, NY 13244-1030
United States
315-443-9743 (Phone)

Syracuse University - Maxwell School of Citizenship and Public Affairs ( email )

400 Eggers Hall
Syracuse, NY 13244
United States

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