“Hand downs” are back. Yay, you say? More likely, what are “hand downs,” a very fair question for anyone who isn’t paid to sit in the press section of the Supreme Court gallery. It’s when the justices announce their decision to the audience, summing up their rationale and conclusion. It’s not law, like the opinions themselves, but a tradition disappeared during the pandemic, when oral argument went livestream, justices got to feign asking questions in order to put on a play for the listening audience and the lay listening public got to hear argument they rarely understood or appreciated.
While the Court will resume hand downs, it will not do so by livestream, so that it will still only be heard by the audience in the room. Frankly, who cares? Why Linda Greenhouse, of course.
So why do I insist that the hand-downs matter? Because it is in those moments that the Supreme Court meets the public. The courtroom audience may be small, and hardly representative of the public at large, but it is real. This is not the notional public that may eventually read the opinion. It’s not the public that attends the court’s oral argument sessions as spectators to the volleys of questions and answers between the justices and the lawyers. The hand-downs are performances, yes, but what the justices are performing is a kind of accountability. They are showing their faces, explaining themselves. For better or worse, they are owning their work, at the moment of its emergence into the world.
Meets the public? What manner of nonsensical tomfoolery is she spewing? First, it has absolutely nothing to do with meeting the public, even if the New York Times allowed Greenhouse to string those words together in a sentence wholly devoid of meaning. Second, so what?
Does she expect the justices to feel ashamed of their rulings, told for the first time to the audience in the room as the full written opinions are disseminated publicly for the rest of us to read? Does she suffer the delusion that because she’s decided they’re pandering political hacks for failing to rule the way she would want means they are secretly ashamed of themselves for failing to get Greenhouse’s approval?
And what does the “public,” to the extent the Supreme Court reporters from the Times, Slate, HuffPo, WaPo, et al., are the “public,” plan to do about it? Hiss at Alito’s hand down? Call Kavanaugh a rapist and throw beer cans at him? Wear their handmaiden’s hats when Barrett gets her turn? Or maybe hoot and holler for Sotomayor, Kagan and Jackson, shrieking “KWEEEEN!!!”?
Did it matter to those three Republican-appointed justices that they had a live courtroom audience for their unusual hand-down? I have no doubt that it did, just as it mattered to Chief Justice William Rehnquist to be able to announce a dissenting view on behalf of himself and the other dissenters. In the courtroom that morning, the members of a collective body that had fought a hard issue through to a conclusion (albeit, as it turned out 30 years later, an impermanent one) were in dialogue with one another and, in an almost tangible sense, with the public.
While admitting that hand downs wouldn’t have changed a thing about the Dobbs decision, Greenhouse’s point is clear. She would be denied her opportunity to hate the justices for their ruling. By reinstituting hand downs, the cohort of Supreme Court reporters and the few members of the public who might be present will be there to glare at the justices, to let them know how much they hate their decisions, how they as representatives of the public despise the conservative majority.
Not a single decision will be changed, of course, but how could those Trump justices not feel the hatred beaming at them from the audience, and the progressive justices feel the love for their brave dissentals? Maybe they will change their evil ways to win the love of Linda Greenhouse, but even if they don’t, at least it will give the Greenhouse gang another chance to loathe.