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“Why should only lawyers have access to the judges? Why shouldn’t the people?” Judge Stephen Dillard of the Court of Appeals for Georgia recently posed these questions during a recent podcast interview with the Lawyerist.
As the second decade of the Roberts Court begins, it’s an opportune time to take a closer look at judicial transparency. Do newer communication mediums like Twitter help open a window into the least known branch of our federal and state governments or do they ultimately hinder the efforts of our judiciary
While direct information about the judiciary may not be as readily available to the public, speculation about the courts still tends be frequent fodder for the media. The 2016 presidential election has already placed the U.S. Supreme Court (SCOTUS) in the spotlight with one presidential candidate suggesting that SCOTUS Justices be subject to retention elections every 8 years. With the judiciary cloaked in a robe of mystery, the public and the media often create their own narrative, which does not necessarily align with the realities of the day to day operations within the judicial branch. In a 2014 study from the Annenberg Public Policy Center, only 35 percent of Americans could name a single branch of government and only 36 percent could name all 3 branches.
With confusion and ignorance about the judicial system more prevalent than ever, does it help to have members of the judiciary communicating openly on platforms like Twitter?
Arguably the two most prolific judicial tweeters, Justice Don Willett of the Texas Supreme Court and Judge Stephen Dillard of the Court of Appeals of Georgia, regularly cite Twitter as a way for them to educate the public and increase transparency about their respective courts. Both have been interviewed several times about their tweeting and both have noted that the pros outweigh the cons in terms of providing more open access to the judiciary. Both have also commented that judges subject to election are committing “political malpractice” if they’re not leveraging social media platforms to engage with voters. As Justice Willett noted in a recent article, “Judges are elected in 39 states, and Americans increasingly consume information online. Judge Willett talked during his podcast interview with the Lawyerist about “demystifying” the appellate system, noting that society is better served by “a population, a citizenry, that is more educated about how the appellate system in their state or their federal system operates and works.”
Justice Willett and Judge Dillard also have the support of their peers as they strive to increase transparency of the judicial system. Justice Willett was even recognized by the Texas Legislature as the state’s first Tweeter Laureate. U.S. District Judge Richard Kopf of Nebraska, who recently retired his well-known blog, Hercules and the Umpire, discussed extrajudicial communications in an interview with the National Law Journal:
It is critically important that federal judges be more open when they can do so. Canon 4 of the Code of Conduct for United States Judges, and the related commentary, explicitly permits and encourages judges to write and speak about legal subjects. What federal judges really do is a mystery to laypeople and even to many lawyers. Revealing who we are, how we think, what we do and why we do the things we do is far better than treating the federal judiciary as a secret medieval guild. Besides, we lack the magic to pull off such trickery.
The ABA issued Formal Opinion 462 in 2013 providing guidance on social media use by the judiciary advising caution, but acknowledging that communication through social media platforms had become part of everyday communication just like the telephone.
Spotlight on SCOTUS
In recent years, most of the SCOTUS justices have made efforts to shed light and educate the public about the inner workings of the Court by publishing books, doing interviews, and actively participating on the lecture circuit. To support the release of his recent book entitled, The Court and the World, Justice Breyer even went as far as to appear on The Late Show with Steven Colbert. In a recent essay by Professor Richard Hasen of the University of California, Irvine School of Law, he discusses the inevitable increase in extrajudicial speech during the last several decades and even creates a “Celebrity Index” based upon the number of extrajudicial appearances per year on the bench. According to Professor Hansen’s index, Justice Sonia Sotomayor has the highest rating with an average of nearly 14 appearances per year followed by Justice Stephen Breyer with an average of just over 11 appearances per year. All but one of the Justices in the Top 10 are from the current Court potentially indicating a desire among the Court for greater transparency and openness, or perhaps, they are simply trying to increase the sales of their books.
Whatever the reason for the increase in extrajudicial communications among SCOTUS, it seems unlikely that any of the current SCOTUS Justices will start tweeting alongside Justice Willett and Judge Willard anytime soon. For the time being, it seems likely that judicial tweeting will be primarily tied to those judges who have to run for election. However, it is entirely possible that we’ll see a SCOTUS Justice on Twitter or another social media platform during the next presidential term, maybe even before cameras are permitted within the Court. Social media communications have become ubiquitous and intertwined in our culture of communication. Chief Justice Roberts stated, “Language is the central tool of our trade . . . ,” so maybe the mediums through which we communicate those words should not be limited.