Last week, the Supreme Court revealed that the justices would resume announcing opinions from the bench, a tradition they suspended early in the COVID-19 pandemic. But there’s a catch: While the court has continued livestreaming arguments, it will not livestream opinion announcements. Instead, as it did before COVID, the court will give these recordings to the National Archives, which will make them public at the start of the next term. This move has drawn criticism from journalists, who pointed out that the infrastructure to livestream these announcements already exists; SCOTUS simply does not want the public to hear them.

In this week’s Slate Plus bonus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the implications of the court’s decision and the dubious reasoning that may lie behind it. Below is a transcript of their conversation; it has been edited for length and clarity.

Dahlia Lithwick: I was one of the people who went to those opinion announcements long after nobody else was going, because I think that is some of the most important stuff that journalists should cover. What do we lose when we don’t hear opinion announcements? And why is the court trying to keep us from hearing this?

Mark Joseph Stern:If it didn’t matter, then the court wouldn’t be keeping us from hearing it, right? The court knows that these opinion announcements inject a lot of blood and drama into decisions that can otherwise seem a bit bloodless and academic. In their opinions, the justices say a lot of stuff like “respectfully” and “with great admiration for my colleague, I must dissent.” But when that gets translated into a bench statement, and especially a bench dissent, it can sound a lot more fiery, even viscerally angry—a lot like a fierce policy dispute that they lost. It can look like a senator who just lost a big vote on a bill is standing on the Senate floor delivering a furious speech about it. It looks a bit political, but it also just shows how deeply felt these disagreements are. I think the court predictably said: “We just can’t have that many people listening in on those kinds of sessions, because it’s bad for the institution and it’s bad for the legitimacy of this court.”

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This is a court that, in public appearances, is trying to pretend they’re all best friends. Opinion announcements can show that sometimes the justices are really furious with each other. These are not nine best friends who have cerebral debates in their common room. These are nine extremely opinionated political animals who are brawling on the bench quite frequently over their vision for American law and American policy. And if announcements were livestreamed, audio clips would make their way to NPR and the nightly news. Regular Americans who are not super plugged in would hear this stuff, and it would give them a deeper understanding of the case, allow them to form a stronger opinion about whether the decision is right or wrong. The court thinks: We can’t have that, right? We don’t want the public paying too much attention.

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Lithwick: I was so struck by a memory I had from early on when I covered Sandra Day O’Connor, and she used to say: “You don’t need the text of my speeches. You don’t need to know anything I do off the bench, because everything that I do that matters is in the four corners of my opinion.” Now we’ve completely subverted that. You now have justices reading their bench statements that are, in fact, the four corners of the opinion. And somehow the public can listen in on the audio of the oral argument and notlisten in on them reading from their opinions. It feels like completely upending the kind of show-your-work theory of what the justices are supposed to show us and what they’re supposed to hide.

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Stern: A counterpoint, if I may. If you write the majority opinion, you get to draft your bench statement, and you are under no obligation to run it by the other justices who joined. And from time to time, bench statements will phrase things about a case in a way that does not align perfectly with the written opinion. Of course, the written opinion controls. But I think a justice in this hypothetical would say: “We don’t want people getting confused. We don’t want people absorbing the opinion through that audio of the bench statement and then misunderstanding what we actually decided.”

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But of course, if that is the hang-up, there’s a simple solution: Run your bench statements by your colleagues before you read them! It doesn’t take that long. Also, the audio of opinion announcements gets released at the beginning of the next term, so people are going to hear them no matter what! So, if that is the reason, if that concern is top of mind, that is so easily addressed, it cannot justify this rather dramatic rejection of transparency.

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Lithwick: More to the point, if the bench statement doesn’t reflect what’s in the opinion, don’t read it!

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Stern: Exactly. I will just add one thing. We know the justices are concerned about the public taking their bench statements too seriously, because in the pre-COVID days, when justices did read their decisions from the bench, many of them would actually print out the scripts that they were reading off of and provide them to the press. But it was always stamped at the top with the words “Not for Publication.” So you could tweet the bench statement line by line, but you could not scan it and put it on DocumentCloud. That’s just another indication that they are freaked out by these things that they themselves are writing and reading and do not want the public to interpret them as the last word in a case—which just feels to me like a very helter-skelter way of doing law.

Lithwick: We know that toward the end of his career, Justice Scalia was deviating wildly even from the printed bench statement in front of him, in some cases, and saying things extemporaneously as part of the announcement. I feel like the justices are saying: “We can’t control what we say or what we write in a summary of the opinion, so nobody can listen to it.” Well, maybe just control yourselves? But saying “control yourselves” is becoming so 2022. I have to find a new theme for next year.

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