This Thursday, the Georgia State Law Review will host a comprehensive symposium on Supreme Court Transparency called “Invisible Justices.” Cameras, recusal, ethics rules the Justices’ papers, and the mysterious writ of certiorari are all on the agenda. In addition to co-moderating what should be a fascinating lunch time discussion with Adam Liptak, Robert Barnes, and Dahlia Lithwick, I also will open the day with a brief talk discussing all of these transparency questions. For the next four days, I will be presenting my views here on each of these issues. Today, I start with cameras in the Court.
Over two dramatic days during the last week of June, 2015, the Supreme Court handed down dramatic decisions providing gays and lesbians the right to marry in all fifty states and rejecting the attempt by a few libertarian lawyers and law professors to gut the Affordable Care Act. During this same time period, the Court also handed down important opinions on redistricting, the death penalty, and housing discrimination. Over the course of a week, much of the nation and the media focused their attention on the nine Justices.
Although the script for the announcement of these decisions was in the complete control of the Justices, and although these were open public governmental hearings, no one but a few reporters and about 250 people actually saw the Court announce these decisions. C-Span offered to televise the proceeding so that those interested could gather around their televisions, tablets, and smart phones to observe history, but the Justices refused that request.
There will never be any video or even photographic evidence of these landmark cases. When law professors teach these cases to future generations of students, neither will be able to see how proud Justice Kennedy was to provide equal rights to gay Americans or how Chief Justice Roberts turned away a politically inspired challenge to President Obama’s signature legislation. Truly historic governmental business was transacted largely in private away from the American people.
As discussed below, there are important reasons to televise Supreme Court proceedings, both the oral arguments and the decision days, and few persuasive objections to keep them off the air. It is well past time the Supreme Court enters modern times and joins most of our states as well as the supreme courts of Canada, Brazil and the United Kingdom, and allow live television coverage of its official business.
The first argument in favor of cameras is the simplest one: The oral arguments and decision days are already public events, C-Span is willing televise them at its own expense, and there are obviously many Americans who want to witness the proceedings. We normally have a strong presumption that open, government hearings will be, well, open.
In addition to the normal presumption of transparency, there are a myriad of cultural, educational, historical, and civic benefits to allowing cameras at the Supreme Court. The American people could watch lawyers and judges argue over our most controversial, divisive, and sometimes partisan issues, with mutual respect, civility and deference. Especially during these increasingly partisan times, the oral arguments could set an example of how public officials can disagree, sometimes vehemently, without undue rancor or personal attacks.
Our museums could display the Court’s most important arguments showing the Justices debating the issues and announcing the results. Students in elementary and secondary schools, colleges and law schools could gain improved insight and understanding about the Court and great historical issues like race relations, abortion, gun control, and voting rights by actually seeing the Justices perform their duties. Perhaps most importantly, when the Court hands down landmark decisions like last term’s same-sex marriage opinion, millions of Americans could gather together in a moment of national pride (or anguish) and political engagement which would be markedly different from hearing the news second-hand from a few select journalists.
The arguments traditionally made against cameras are singularly unpersuasive. Some Justices have expressed concern that out-of-context snippets of Court proceedings might be distorted by the media if cameras were allowed in the Courtroom. For example, testifying in front of Congress on the Court’s budget, Justice Breyer said that “If you see on television a person taking a picture of you and really mischaracterizing [what you say], the first time you see that, the next day you'll watch a lot more carefully what you say. Now that's what's worrying me.”
Of course, all governmental officials who appear in public run the risk of being misquoted or having their statements used misleadingly by the media. But that is one of the risks of holding important government positions. As Dean Chemerinsky, who will be at the symposium, has remarked:
I have heard justices express concern that if television cameras were allowed, the media might broadcast excerpts that offer a misleading impression of arguments and the court. But that is true when any government proceeding is taped or even when reporters cover any event. The Supreme Court should not be able to protect itself from misreporting any more than any other government institution ….
The justices might be afraid that an excerpt of oral arguments might be used for entertainment purposes; perhaps they will even be mocked. But that is a cost of being a democratic society and of holding a prominent position in government. In no other context would Supreme Court justices say that government officials can protect themselves from possible criticism by cutting off public access.
Some Justices have expressed fears that lawyers appearing before them, or even their fellow Justices, may misbehave and grandstand if cameras were allowed inside the Court. For example, Justice Kennedy has said that with cameras there may be an “insidious temptation to think that one of my colleagues is trying to get a sound bite for the television” and that would “alter the way in which we hear our cases, the way in which we talk to each other, the way in which we use that precious hour.” This is a remarkable statement by the nation’s most important judge. How the Justices themselves behave is in their own control and not an excuse to hide their public duties from the American people. To the extent the concern is over lawyers misbehaving, the Justices are more than capable of preventing lawyers from playing to the cameras in an inappropriate manner.
Perhaps the strongest (but still unpersuasive) objection to cameras in the Supreme Court is that the public may perceive or come to believe that oral arguments play a larger and more significant role in the Justices‘ final decisions than they actually do. Justice Sotomayor, one of many Justices who was more open-minded about cameras during her confirmation hearings than after ascending to the bench, has said that televising oral arguments “could be more misleading than helpful…. It's like reading tea leaves.” Justice Scalia has argued that televising oral arguments would present a “misleading” view of the Court both because oral arguments account for little of what the Court actually does and snippets of the arguments would be taken out of context.
First, none of these arguments applies to the dramatic June decision days when the Justices do nothing more than announce their decisions in nationally watched cases. There, the Justices completely control the message they want to send and how much or little information they provide to the public.
Second, it is just not up to government officials to decide what already public information should be shared with the public. If the American people overstate the importance of oral arguments or take “snippets” out of context, the Justices have many different ways to correct those misapprehensions. Moreover, keeping the arguments secret and hidden away might in fact give the arguments an importance out of proportion to their actual relevance. If the arguments aren’t that significant anyway, what is the harm of putting them on television for all the world to see?
The Justices do make the transcripts and audio recordings of oral arguments available for public inspection. But for new generations of young Americans raised on YouTube and iPhones, live video streaming and television coverage of important news events is the most important information currency.
Most states now allow use of cameras and/or video streaming throughout their systems including in their supreme courts. The O.J. Simpson case notwithstanding, there have been few complaints about the use of cameras, with judges and lawyers saying their presence does not adversely affect the proceedings. In addition, the high courts of Canada, the UK, and Brazil also televise their proceedings and report positive experiences.
It is past time for the Justices to join with most of our states and these foreign countries and remove their cloak of invisibility. Vague fears of lawyer or Justice showboating or possible public misperception of the nature of already open proceedings should not deprive the American people of access to their government. The Court should allow cameras into all of its proceedings where members of the public are already invited. Anything less than allowing that full coverage suggests that the Justices are hiding from the very people they are supposed to work for and who pay their salaries. That is no way to run our country’s highest Court.