On February 13, 2016, Supreme Court Associate Justice Antonin Scalia was found dead at the age of 79 at a ranch in Shafter, Texas. Scalia was one of the Supreme Court’s most conservative justices, and was widely regarded as the intellectual linchpin for originalist and textualist interpretations of the Constitution. He was also widely regarded—both by those who supported and who opposed his views—as one of the United States’ most brilliant legal minds. His staunch positions on many of the social issues brought to the Supreme Court placed him firmly within the public eye in a way that other Justices are not, and for that, Scalia took an awful lot of heat from his detractors. And yet, he was known as a great friend of liberal Justice Ruth Bader Ginsburg, and even comedian Stephen Colbert—who often made jokes at Scalia’s expense—had a touching story about Scalia’s sense of humor and humanity when Scalia was the lone person in the crowd who complimented Colbert on his edgy and controversial performance at the 2006 White House Correspondents Dinner.
Almost immediately after Scalia’s death was announced, there was a lot of grave dancing by his detractors whose condemnation of Scalia as a hatemonger was more than a little ironic. But the reaction from the other political extreme was even more puzzling, as various supporters opined online that Scalia’s death during an election year must surely be some kind of political assassination plot by liberals. It was the kind of notion that sounds crazy, and yet, one looks around and sees a lot of people nodding their heads in a sort of collective, “maybe.”
The real cloud over Scalia’s death is that he was found at a fancy resort in Texas whose owner not only didn’t charge Scalia to stay, but had a business involved in a case brought to the Supreme Court last year. The Court declined to hear the case, which might not look irregular, if it weren’t for the fact that some 8,000 cases are brought to the Supreme Court’s attention each year. The Court decides to hear maybe 1/100th of that number, and it decides which to hear by way of an informal voting process that could or could not change at any time. We wouldn’t know, as the process by which the Court determines what it will hear is secret. We don’t even get to know which Justices voted which way. Given the increasingly important role that the Supreme Court is playing in matters of daily interest to all Americans (the fate of Obamacare, religious freedoms, and marriage equality are just three), this lack of transparency seems deeply and oddly out of step with the rest of how our government works. And in that context, Scalia’s visit looks fishy, even if it is, in fact, wholesome.
Those in the world of ethics, governance, risk, and compliance know only too well the importance of transparency. Failure to provide a clear view to the inner workings and history of decision making at one’s organization can result in dire consequences if regulators so choose. And yet, our country’s ultimate judicial authorities operate in near opaqueness on how they make their judicial decisions, and more. (Scalia’s free trip was by no means isolated; the Justices take some 350+ free trips a year, though Scalia took more, by far, than any other Justice.)
Does this mean that the Supreme Court is corrupt? No, but the lack of transparency does make room for raising awkward questions … if not outright conspiracy theory. The first is the hallmark of a healthy democracy, but the second is a sign of an ailing one. It would be better if the Supreme Court followed the lead of compliance officers and built a glass wall around itself, instead of a black curtain.