By Mike Dorf
In my latest FindLaw column I consider the constitutionality of a bill sponsored by Sen. Arlen Specter that would require the Supreme Court to permit television cameras in the court except in those rare instances in which doing so would violate the due process rights of a party. As I explain in the column, although the bill raises some serious issues of separation of powers, those issues are probably best resolved in favor of the law's validity. Nonetheless, on grounds of inter-branch comity, I conclude that Congress should not enact the law. Here I want to address the question of what procedure the Court ought to use to resolve this and related questions of courtroom procedure and etiquette.
As I say in the column, on the merits I think this is a relatively easy question: The Court should open itself to tv camera coverage. The concern that the dynamic of oral argument would change seems to me overblown and, in any event, outweighed by the public interest. Audiovisual transmission is the most effective way for the public to find out what happens in the Supreme Court. Is there a risk that people will get a distorted view of oral arguments from snippets on the evening news? Sure, but: a) Nobody younger than the Justices even watches the evening news anymore; and b) It's hard to believe that the distorted view would leave people worse informed than the current approach of barring cameras. In the end, I just don't see the case for keeping tv out, anymore than I see the case for making reporters write their stories about the Court using quill pens.
But presumably the Justices are divided on the matter and so the question arises of how they should decide it. (One argument for taking the power to decide this issue away from the Justices that I do not discuss in the column raises a concern about self-interest: From the Justices' perspective, perhaps the best reason for keeping cameras out of the Court is that doing so preserves their relative anonymity. I'll put that aside.) Here are a few possibilities:
1) Majority vote. This seems like the easiest way to decide the matter. With the exception of granting cert--which takes only 4 votes--the Court generally takes action by majority vote. It could do so with respect to this matter as well. An analogy might be to the Court's role in approving changes to the Federal Rules of Civil Procedure or to its own rules. Seen as a kind of rule of procedure, whether to have cameras in the courtroom would be decided by majority.
2) Let the Chief Justice decide. The Chief makes various administrative decisions for the Court, typically in consultation with the other Justices, but insofar as he has a special administrative role that the others lack, he could tackle this one. I tend to think that CJ Roberts would not want this task--especially if he favors permitting cameras and one or more colleagues strongly oppose (as they do). If you're going to override strong opposition, you'd like some cover.
3) Delegate the decision to a single Justice or a Committee. Like a tiny faculty, the Court parcels up committee work. It might do so here, but the same factors that lead me to think the CJ wouldn't want to go it alone here lead me to think that no one would want this thankless task.
4) Require unanimity to change the policy. This may well be the actual rule, even if unofficially so. Insofar as any individual Justice really doesn't want to be on tv, the others could be deferring to him or her. But I question the legitimacy of such an approach. If the holdout is worried about changing the dynamic of oral argument, that is either a worry about his colleagues--in which case the fact that they're not worried should count for a lot more--or a worry about himself--which is peculiar: he should just try to exercise some self-restraint. I wonder if instead the concern here is that overriding any Justice's wishes to permit cameras in the courtroom feels like an invasion of that Justice's privacy. This strikes me as misguided--especially if coming from a Court that does not seem to value actual privacy all that much.
5) Require consensus to change the policy. This is simply a variant on unanimity and should probably be avoided for similar reasons.
So, bottom line: I would favor having the Justices decide this issue by majority vote, with no Justice taking account of the existence or strength of any other Justices' views as such (as opposed to listening respectfully to their arguments). But I think it's more likely that it will take either unanimity or consensus to change the policy.