Transparency and Policymaking at the Supreme Court

26 Pages Posted: 31 Aug 2016

See all articles by Louis J. Virelli

Louis J. Virelli

Stetson University College of Law

Date Written: 2016

Abstract

Transparency is undoubtedly an important principle in a democratic government. It is not, however, necessarily a one-size-fits-all proposition. This holds true for issues of transparency at the Supreme Court. Whereas the Court’s traditional adjudicative responsibilities fit comfortably within norms of transparent decision making like publishing written opinions in merits cases, some of its other, more policy-oriented roles do not. This short paper considers two areas in which the Court’s activities more closely resemble policy judgments than traditional adjudication — certiorari and recusal — and uses them as examples of how the nature of the Court’s activity can impact the value of transparency in that activity. It does not seek to prove that transparency is per se less valuable in certiorari and recusal decisions, but rather to highlight the highly discretionary nature of those decisions and to propose that granting such a high degree of latitude to the Court also triggers some of the protections, like the deliberative process privilege, that are more commonly associated with policymaking by administrative agencies. The result is a call for a more context-based dialogue about transparency at the Court in hopes of promoting both our democratic values and the legitimacy of one of our most important institutions.

Keywords: supreme court, scotus, supreme court of the united states, policymaking, policy making, certiorari, recusal, transparency

JEL Classification: K4, K49

Suggested Citation

Virelli, Louis J., Transparency and Policymaking at the Supreme Court (2016). Georgia State University Law Review, Vol. 32, No. 4, 2016, Stetson University College of Law Research Paper No. 2016-10, Available at SSRN: https://ssrn.com/abstract=2832107

Louis J. Virelli (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7329 (Phone)
727-343-9319 (Fax)

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