The Open Court and its enemies: a (contingent) argument for publicity in judicial deliberations

Brazil and Mexico are the two rare cases in which Supreme Court deliberations are both public and broadcast live – an arrangement most constitutional judges, scholars, and lawyers would consider a bad idea. A central argument against such publicity highlights the importance of creating conditions for judges to candid exchange arguments and try to speak with “a single voice”. The Brazilian case, however, presents challenges to key assumptions behind these and other arguments in favor of secret judicial deliberations. The benefits of secrecy are contingent on institutional design and the professional culture shaping several dimensions of a court's openness to the public, and are not obtained automatically by giving judges a protected space to try to build consensus. In Brazil, for example, as judges have varied mechanisms to express individual preferences to the public, secrecy in deliberations would unequally empower the judges who are most engaged with the public in other ways.