For Democracy's Sake, Supreme Court, Let the Cameras In

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It's by far the most closely-watched Supreme Court case of its generation, yet only a miniscule fraction of Americans will be able to see it live.

supreme court camera-body.jpg

Reuters

Pardon me for being such a drag on the eve of the Supreme Court's momentous health care arguments, but I respectfully dissent. There is something discordant here, something that just doesn't feel right. While the legal and political elite gleefully plan their big week at the High Court, while members of the Washington establishment applaud themselves for their inside connections to the courtroom, the rest of the country will be left, as usual, in the dark. The contrast gives new meaning to the phrase "unequal justice."

Starting next Monday, for three consecutive days, two hours a day, the justices will hear oral argument in three joined cases that are primed to determine the immediate fate of the Patient Protection and Affordable Care Act of 2010, the controversial new federal health care law. Together, the three cases (out of Florida) are the most closely watched Supreme Court cases since Bush v. Gore, for they have the potential to determine the outcome of the next presidential election and not just pick a winner in the last one.

The Supreme Court continues to maintain the fiction that it's "public enough" to allow 400 or so people into a courtroom.

Last week, to mark the occasion and to reflect the state of eagerness over the arguments, Janet Adamy and Jess Bravin of The Wall Street Journal wrote a memorable piece -- an instant classic -- detailing how Washington insiders have been clamoring for seats at the Court next week. There are only 400 seats inside the courtroom and there are evidently four schmillion lawyers, lobbyists, doctors, and politicians scrambling for the chance to be able to lie by telling their descendants that they weren't bored to death watching the Care Act show.

People interested in seeing some or all of the arguments next week will be camping out overnight for seats. It's going to be just like a tailgate at a Redskins' game, only with law geeks instead of "Hogs!" Meanwhile, men and women of means and persuasion are putting the screws to their "inside" connections for a chance to see the action. For example, Justice Antonin Scalia evidently hooked up Ezekiel Emanuel, Rahm's brother, with a ticket to at least one edition of next week's show. Here's another cheesy example from the Journal's piece:

Some attorneys hoping for a seat during the health-care arguments have plunked down $200 to join the Supreme Court Bar, which has its own line that some people predict will be shorter than the lines for the public. Members also have access to a 60-seat lawyers' lounge where they can listen to a live audio feed.

Ugh, lawyers! Always finding loopholes. (P.S. Memo to Supreme Court Bar: Raise your membership fee; make those clever, rich Washington lawyers help pay for indigent defense work!) So essentially, next week there will be two classes of people. There will be those few locals who are patient, hardy, or well-connected enough to hear the epic arguments unfold at the court in real time. And there will be those who aren't. It's like the "99 percent / 1 percent" meme, only the currency here instead is universal access to the public work of governance.

The Washington insiders who will swarm into the courtroom next week would say, in response, that they represent a welcome form of collegiality that is sorely lacking on Capitol Hill and at other public government venues inside the Beltway. Fair enough. But my point isn't that laypeople should be allowed into the room next week while professionals are kept out. My point is that the Supreme Court continues to maintain the fiction that it's "public enough" to allow 400 or so people into a courtroom, and yet it shuts the doors on the rest of America.

My informal calculation, dividing 400 by the current U.S. population, reveals that 0.00013* percent (my initial math was off) of the American people will have access to the live arguments. Take that miniscule percent and then ponder the number of people over the past two years who have hemmed and hawed over the constitutionality of the federal law. Think of all the people who don't live in Washington who care about the law; think about all the people (10 million? 14 million? More?) who have jobs in the health care industry alone who won't get a seat inside the room.

None of next week's insanity and clubbiness would be necessary if the justices had done what they should have done -- in this instance, at least -- which is to provide to the nation a live video feed of the entire public proceedings. That way, the hundreds of millions of Americans whose lives will be impacted by the outcome of these cases would be able, if they so chose, to watch and see for themselves what questions the justices ask and what answers the harried lawyers offer in return. If not for this case, then which? If not now, when?

Alas, to the surprise of no one, the justices announced last week that they would not permit the Care Act arguments to be broadcast live or on video. Instead, interested people will be able to hear the argument, but only in the afternoon, after the day's argument has concluded. The most eagerly anticipated (and most important) reality show in America for the past two years -- ever since President Obama signed the Care Act into law on March 23, 2010 -- will be entirely blacked out. That's just not good enough.

For once, the Supreme Court has what America wants to see: a "can't miss" daytime hit, a short, impactful series that would be watched by tens of millions of people interested in health care and the new law. Every smart classroom in the nation would tune in to see how justice works in America at its highest levels. Charles Lane is completely wrong and Senator Charles Grassley (R-Iowa) is exactly right. What a unique opportunity now lost for the Supreme Court to educate and inform the American people about what the justices do in court.

Monday's argument, in particular, will have the air of a theatrical premiere -- or Opening Day. Everyone inside that courtroom will be looking around to see who else is there. There will be drama. When the argument begins, there will be great wit and insight. And the legal, political and economic stakes could hardly be higher. It's the sort of show that millions of Americans deserve to see live, as it unfolds, and not on tape delay. To me, no matter how the justices come down on the merits of the Affordable Care Act, they've already made a big mistake.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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