Hearing Justices Stephen Breyer and Sonia Sotomayor regurgitating partisan pro-abortion arguments and euphemisms that one can read daily on NARAL’s Twitter feed only reenforces the argument for limiting transparency in the Court. The partisan speechifying — barely a question to be found in most of it — is insufferable, but worse, it has little, if anything, to do with the Constitution.
Would these justices act like activists without the presence of live audio? Maybe. But Justice Sotomayor openly wondered this morning if a Court could “survive the stench” that overturning Roe would create “in the public perception.” In another instance, an agitated Justice Breyer explicitly asked the audience to go read pages of Casey. The Supreme Court adjudicates the constitutionality of laws. It is not charged with worrying about the popularity of decisions or the vagaries of democracy (though Sotomayor makes a good case that abortion should be handed to states and voters rather courts.)
And no one is immune from human nature. The lawyers and state advocates who participate in the arguments, many of whom may one day run for public office or seek political positions, would be more motivated to play to the cameras. Audio is bad enough, but imagine cameras in the Court — something both Republicans and Democrats have proposed instituting. It would make everyone more self-conscious about their public persona and politics. Justices do not live in hermetically sealed existences free of external influences. Making these cases spectacles of political entertainment would only further corrode our political institutions. You can read the transcript and decision later.