Justice Clarence Thomas speaks during oral arguments before the Supreme Court in the case U.S. Patent and Trademark Office v. Booking.com as it is live streamed on a laptop, May 4, 2020.
Drew Angerer/Getty Images
For most of the world, the sound of a toilet flushing during Supreme Court oral arguments on Wednesday was an amusing distraction, a curiosity that humanized the justices. For the court itself, I am quite certain, it was an utter disaster, a direct threat to the institution’s prestige and, by extension, its legitimacy. The flush may set back transparency at the court for years and probably traumatized Chief Justice John Roberts for life. It is exactly why the justices dragged their feet for so long before embracing arguments by phone. And the public reaction confirms their worst nightmares about the consequences of media access. (One sample joke: “Most insightful comment Alito has made in years.”) The court wants to be an American Vatican that sends up smoke to alert a rapt nation to its semi-divine judgments. Instead, on Wednesday, it became the one thing the justices dread the most: a joke.
To see why the toilet flush was so shocking, it helps to understand the extreme measures the court takes to preserve its status as a mythical temple of justice during normal times. Visitors must walk down a gleaming marble plaza to enter the building, passing by ornamentation that seems to have been stolen from some ancient Greek palace: There are turtles holding up lampposts and friezes and monumental statues, including a giant robed lady holding a tiny robed lady. The courtroom itself is the building’s inner sanctum, flanked by heavy red velvet curtains, with huge columns that reach up to a coffered ceiling. At the appointed hour, the justices emerge from behind the curtain, clad in their black robes, as the marshal cries “oyez,” an archaic Anglo-Norman expression that calls the court into session.
Is this formality silly? Reading it on the page, you may think so. But attend court arguments and you might find yourself surprised by the power of the rituals. When the justices take their seats behind the elevated mahogany bench, they look like a council of oracles prepared to reveal a sacred text. In a sense, they are: The justices’ pronouncements carry the force of law; their words can alter the ground rules that govern our nation. You might roll your eyes at the ceremonial pomposity. But when the court speaks, the country listens.
This legal liturgy serves a profound purpose. The court presents itself as a majestic body of immense authority because, on some level, its members are insecure about their ability to exercise any authority at all. SCOTUS’ tiny police force cannot march into Congress or state legislatures to enforce a decision. The chief justice cannot order the president to send in the National Guard if a governor defies a ruling. There is simply no constitutional mechanism for implementing a Supreme Court order. SCOTUS derives its power from the rest of America’s willingness to abide by its decisions. Its capacity to turn majority opinions into the law of the land is a magic trick. Right now, it is working: A 2019 poll found that the public mostly believes the court has the right amount of power and trusts the justices to wield it in the public’s best interest. If we stop believing in that magic, however, the court will effectively lose the ability to say what the law is.
There are few things less magical than the sound of a toilet flushing. It makes us think of base human functions, of the necessary yet foul things our bodies do every day. We are supposed to view the justices as brains in a jar who operate on a higher plane of intellect than many of us can even access. If we think too much about the justices’ bodies, we might begin to question if they’re really high priests who transcend human limitations—or if they’re just ordinary people, weighed down by the same errors and flaws and biases as the rest of us. And if they’re just ordinary people, then why, exactly, do five of them get to make the rules that the rest of us have to live by?
There are few things less magical than the sound of a toilet flushing.
When the justices face risk of embarrassment in the courtroom—like, for instance, a protest during arguments—the audience is limited: A few hundreds attendees might witness it, but the court can edit it out of the audio recording it releases days later. When arguments are livestreamed on C-SPAN, as they have been during the coronavirus pandemic, the court has less control. It can edit out a humiliating blip afterward; in fact, the court edited the toilet flush out of its official release of Wednesday’s audio. But it cannot scrub the C-SPAN clip from the internet.
No one understands this problem better than Roberts. The lack of control is one reason why he resists cameras in the courtroom, or livestreaming audio during normal times. He feels an urgent need to maintain the court’s mystique as the presidency collapses into corrupt dysfunction and Congress remains hopelessly gridlocked. In opposing cameras in the courtroom, he frequently asserts that cameras harmed the Senate, leading lawmakers to turn their eloquent debates into empty grandstanding. He has indicated that he wants his court to stand above these institutions that have debased themselves with public access. “The Supreme Court is different,” Roberts has said, “not only domestically, but in terms of its impact worldwide.” Roberts seems convinced that public access to the court’s proceedings will diminish its allure—and, thus, its power—by revealing the justices as regular people. “The courtroom is a very special place,” the chief justice has said, “and maybe part of what makes it special is that you don’t see it on television.”
I don’t think that intuition is accurate; the justices generally sound smart and engaged during oral arguments, and the people they serve would be impressed if they could see them at work in the courtroom. But livestreamed audio is a different beast. Veteran court-watcher Lyle Denniston has condemned telephone arguments, claiming they make the justices look amateurish. While I disagree, Flushgate certainly bolsters Denniston’ argument, and may be enough to doom this experiment. The court will likely continue with live telephone arguments for the remainder of the pandemic. But I doubt it will retain livestreamed audio when the justices finally return to the courtroom. There are no toilets in the courtroom, but there are ample opportunities for other embarrassments, bodily and otherwise. (In 1946, Chief Justice Harlan F. Stone had a massive stroke while reading an opinion from the bench, dying shortly thereafter.)
It’s easy to dismiss the toilet flush as a hiccup during an otherwise efficient transition to transparency. But we should never underestimate the Supreme Court’s commitment to its secular sacraments. The justices, and the chief especially, may come to view these coronavirus accommodations as an existential threat to the court’s authority, and cite flushgate as a reason to abandon livestreamed audio when the crisis has passed. For a few hours on Wednesday, the court became the butt of the joke. And for an institution that needs the public to believe in its infallibility, that is no laughing matter.
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