Cameras in the Supreme Court

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>Shortly after retiring from the Supreme Court, former Justice David Souter lamented widespread ignorance of basic civics, noting that some two-thirds of Americans can't even name all three branches of government. It would probably not surprise him to learn that only one percent of Americans can name every Justice on the Court, according to a June 2010 survey by findlaw.com, and only a mere 35 percent can name even one sitting Justice. Americans are not exactly unaware of the power exercised by the Supreme Court; but the anger of partisans on one side or other at rulings that challenge or violate their core beliefs is often unmitigated by actual knowledge about separation of powers and the Court's role in protecting individual rights.

You might expect this ignorance to concern the Justices, as it concerned David Souter, but even he strongly opposed one effort to educate the public about the workings of the Court--a proposal to televise its proceedings. As Souter famously remarked, cameras entering the court would have to "roll over my dead body."  

There are sound arguments against televising trials, especially criminal trials, as the O.J. Simpson circus demonstrated. Lawyers, witnesses, and judges may be tempted to play to the cameras; real life trials may devolve into episodes of reality TV. Jurors, as well as defendants and complaining witnesses could be harmed by televised exposure: They have no right to privacy at public trials, but also no obligation to suffer notoriety. But the Supreme Court presides over appeals, not trials. In a very formal, highly structured setting, it hears legal arguments from generally sophisticated appellate lawyers; and while the Justice's questions to lawyers would be televised, their deliberations would, of course, remain private. Supreme Court arguments are nominally public, but courtroom space is quite limited; only a miniscule number of people will ever see or hear the Court at work, in person.    

A strong majority of the public favors cameras in the Supreme Court, (according to a C-Span poll) and so do a couple of Justices. (You can read excerpts from the Justices opinions about televising court proceedings here.) Elena Kagan and Sonia Sotomayor have expressed support for televising Court proceedings. Justice Alito has expressed openness to the practice, noting that he favored televising arguments in the Third Circuit Court of Appeals when he presided there. But other Justices seem inclined to oppose it, for reasons I find unpersuasive: Clarence Thomas wants the Justices to be afforded relative anonymity--to which they have no right. Justices Scalia and Kennedy have expressed strong concerns about the effect of cameras on Court dynamics and the possibility that court proceedings might be turned into entertainments (which, I suspect, overestimates the entertainment value of appellate arguments). Justices Breyer and Ginsberg are somewhat more equivocal but would err on the side of extreme caution and delay in introducing cameras to the Court.  

Chief Justice Roberts has been typically noncommittal, but the Roberts Court generally seems more inclined to favor insularity over openness. In January 2010, by a 5 to 4 vote, the Court reversed a lower court decision to allow broadcast of the trial challenging the constitutionality of California's Proposition 8, banning gay marriage. A few months later, the Court officially closed its front doors to the public, citing the usual security concerns. This is not a Court that appears to trust or welcome public scrutiny.

Its resistance to broadcast does seem increasingly anachronistic. The Canadian and British Supreme Courts allow in cameras. Editorial opinion in the U.S. seems to favor cameras in the Court, not surprisingly since, right and left, the media naturally tend to favor access, and so do at least a handful of Senators. In 2009 soon to be former Senator Arlen Spector introduced a bill generally requiring the televising of Court proceedings (unless a majority of Justices decide that cameras would violate the due process rights of any parties in a particular case). Republicans John Cornyn and Charles Grassley joined six Democrats as co-sponsors, and the Judiciary Committee recently reported the bill by a 13 to six vote.  

Encouraged by this bit of bi-partisanship, a coalition of free speech and open government groups circulated a letter last month in support of the bill, in the hope that the lame duck session might provide a window for passage. The ACLU's Washington office Chief of Staff, Michael W. MacLeod-Ball, notes that this campaign season was particularly rancorous (as was the last session); if both parties felt a need to cooperate or appear to be cooperating during a brief post-election thaw, they could conceivably find an opportunity in the cameras in the Supreme Court bill.

Conceivably, but, a few days after the election, I doubt anyone holds out hope for even a brief period of relative comity, and this budget neutral bill seems destined to languish in the Senate for the foreseeable future. Televising Supreme Court proceedings is not exactly a public priority, despite strong public support for it, and, while a sizeable majority favors cameras in the Court, I doubt that even a small minority is aware of a Senate bill requiring it. Few voters will notice or care about the fate of this bill; the closed door Roberts Court will probably be pleased to see it die.    
 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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