Former Texas Chief Justice on the Importance of Court Transparency

Why is it important for courts to have a high level of transparency with the public?

The public needs to have confidence in the rule of law, and that it’s applied objectively without regard to financial status or political affiliation or any other factor the public might think influences how a case comes out.

In general, the courts work very well. In most cases, parties get a hearing and a real deliberation about their disputes. When I say “work very well,” however, there is an income factor — we have a crisis as far as those who cannot afford representation. But when you’re actually in court, I think it goes well and people should be able to see it at work.

What does court transparency mean to you?

Transparency means if you are a citizen and you want to see the courts in operation, you have access. You ought to be able to walk in a courthouse and watch a trial. Reporters ought to be permitted to report on court proceedings for those who can’t be there in person.

There should be cameras, especially in appellate courts where there’s a lot more control over the process and it’s generally limited to legal arguments, made by attorneys, with no citizen witnesses. Those are important cases that impact everyone within the jurisdiction of the court hearing the case. People are entitled to hear that.

The benefit to cameras in the courtroom is that people see the courts are really trying to get the right answer and that cases are much more complex than news headlines suggest. The public can see that sometimes a particular answer is required — by the constitution or a statute or precedent — and that that’s true even if that member of the public doesn’t like the policy that it enforces.

Access to court documents is central as well. There ought to be universal electronic filing of documents, with some exceptions for sensitive matters. And accessing those documents online should either be free or low cost, in addition to all the court orders and opinions. Most are available, but not all.

Why did you first want to broadcast the supreme court arguments in Texas?

I’ve always been an appellate lawyer. Before I joined the court, my colleagues and I were very interested in what was happening in the state supreme court and the issues they were addressing. But if you wanted to watch that proceeding, you had to drive to Austin. And Texas is a big state! It was difficult for many people to actually see what the court was taking an interest in during oral arguments. You could order audio recordings, but you couldn’t quite hear who was asking the question or know for sure which lawyer was speaking. When I came to the court, I wanted to be able to show judges and appellate lawyers what was happening.

And that got me thinking, why is it just for the legal profession? It’s also for journalists and citizens and interest groups and political organizations and everything else. I started on a mission to expand access.

How did your fellow justices respond to cameras in the courtroom?

In Texas, we are elected, so some judges were afraid that videos would be used in campaign commercials to distort or slow down images, try to take pictures of judges with their eyes closed, that sort of thing. There’s also a real concern about lawyers playing to the camera rather than answering questions from the court. But chief justices in other states that already had cameras in the courtroom didn’t say those concerns were significant. It didn’t play out for us, either.

What benefits did you see in having the cameras?

Other lawyers can see what works and what doesn’t. And law students can see as well — if someone wants to be an appellate lawyer one day, here are the best. It’s helpful for journalists, and even the political parties or people interested in whether to reelect a judge. They can take a look and see. The other benefit people don’t really consider is it incentivizes justices to be really prepared for argument. You don’t want to ask a silly question that shows you haven’t read the brief. It elevates that discussion among the judges and the lawyers alike.

The U.S. Supreme Court has so far refused to have cameras in the courtroom. Why do you think that is, and, whatever the reason, should they have them?  

It’s a national court and many of the issues are controversial. Their security concerns could be increased if it’s easier for people to see all the judges and know who they are. It’s a real concern.

But even regarding the Supreme Court of Texas, we’re a state of over 30 million, we have huge cases, and some are controversial. We enhanced security at the supreme court building, but there’s not been any reason to stop the live proceedings of the supreme court arguments.

Were I on the U.S. Supreme Court, I would want to have that security discussion and hear what my colleagues and the U.S. Marshals Service say. But knowing nothing else other than what I do about the Supreme Court, I would have cameras in the courtroom. The Court works extraordinarily well. The justices are brilliant and prepared and knowledgeable — and they ask the right questions. It would show the public that the issues are difficult and they’re really wrestling with how to get it right.

Another way the Supreme Court of Texas is more transparent than the U.S. Supreme Court is who can attend the conferences where justices discuss the cases and whether to accept them. Tell me about how that works.

This was true of the Supreme Court of Texas for decades even before I joined — law clerks and staff attorneys were present during the court’s deliberations, in virtually all cases. Consider a case that is potentially going to be a 5–4 decision. The court starts talking about the case when the petition comes in, and then the briefs come in. There’s an evolution of the case, and the law clerks and staff attorneys are hearing that evolution along the way. They can help me understand where the other justices are on the case and observe their evolution of thinking as well. You can see how a majority can coalesce over time, but it can be harder to do that on your own — my staff could help me. Their attendance helps the court run more efficiently.

It was great for the clerks, recently out of law school, to see the internal deliberations. If I had a clerk working a certain section of an opinion, I might ask that clerk to stand up and present. So as a first-year lawyer, they’re basically arguing before the supreme court.

Once out in the world, they may be able to correct misimpressions about how the court works. In a state where you run for office in political parties, the public can have the impression that everything’s political at the state supreme court. But clerks now out in practice can help dispel that idea — that even though it’s an all Republican supreme court, it doesn’t mean it’s groupthink. Very serious differences of opinion work themselves out and compromises are made along the way.

The U.S. Supreme Court has increased use of the shadow docket, a fast-tracked procedure for resolving cases with no oral argument and limited briefing, generally resulting in rulings containing minimal analysis or explanation of the Court’s reasoning. Does Texas have any equivalent, and do you see issues with this method of issuing decisions?

Texas didn’t have anything similar during my tenure, and I don’t see any corollary today. To the extent you can, the model way to decide cases is full briefing and oral argument. Sometimes you can’t do that — in Texas, there were cases where the court had to give emergency relief that would stop a deposition or even stop a trial if the parties would be prejudiced if an issue wasn’t resolved immediately. An example would be a case where even if they ultimately won, they’d lose because the trade secret was out.

But ultimately those, for the most part, would go to oral argument. We do have a per curiam docket where there’s no oral argument, but those are supposed to be reserved for clear-cut cases where it’s clear error.

Returning to the importance of transparency, are there reasons it’s important that might not be obvious to those who don’t closely follow the courts?

A byproduct of transparency is that it creates a kind of community of people that are interested in the court. They run their own analysis of trends and data and observe what’s on the court’s docket. They can do that a lot more easily when the information is readily available. You have a lot of students of the court system, so to speak, that are talking to their colleagues and other appellate advocates or lawyers generally.

The bottom line is transparency increases public confidence in the court system. It makes judges more accountable and the system more accountable. Once people see what you’re doing, if there are complaints and they’re legitimate, you better address them.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice

Suggested Citation: Erin Geiger Smith, Former Texas Chief Justice on the Importance of Court Transparency, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 24, 2026), https://statecourtreport.org/our-work/analysis-opinion/former-texas-chief-justice-importance-court-transparency