The Supreme Court is the branch of government that works hardest to be seen least. By banishing cameras from their courtroom, eschewing probing press interviews, and generally keeping a low profile (except in their published opinions), the justices strive to preserve the fiction that they take their cues directly from the text of the Constitution, unfiltered by ideology or politics or personal preferences. Like the Pope, the justices, in their proclamations from on high, channel a higher authority.
Despite this conceit, the Court, ironically, has been remarkably effective–more so than the other branches– in sharing with the public the high drama of its most contentious and consequential deliberations. I am referring to the rich archive of recordings of the actual oral arguments in Supreme Court cases, available on Oyez.org. While c-Span offers a rose-tinted window on Congressional decision-making that is mostly the equivalent of video press releases, and the Presidency is accessible only through staged events and choreographed photo opps, the Supreme Court presents the real thing: the raw data of questions, answers, and debate on the leading issues of the day.
Want to experience the making of First Amendment jurisprudence in its heyday? Click on New York Times v. Sullivan, enter the Court’s hushed spectator gallery (all wine-red velvet, like a Chinese restaurant), and take a seat behind Professor Herbert Wechsler, representing the Times, as he prepares to guide the justices to a reinvention of the First Amendment as a leash on bullying sheriffs everywhere, and a guaranty of the right to dissent freely, openly and loudly from government policy.
Listen. It is January 4, 1964, a year after the March on Washington and just three months after the assassination of President Kennedy. Wechsler looks up from his notes, clears his throat, and proceeds to . . . . make history. – PETER SCHEER