Sunday, February 07, 2016

Invisible Justices: Cameras in the Court

By Eric Segall

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.


Shag from Brookline said...

Perhaps we need a test case that would bring the issue before the Court to consider, in addition to briefs, oral arguments and the comments/questions/speeches of the Justices. The delayed audio/transcripts might go viral. But fat chance of Cert being granted.

Unknown said...

If there is not a need to change, there is a need to not change. All You've given is a list of itWouldBeNice reasons and even those are not demonstrative of cameras in the courtroom adding value beyond what is given by the audio.

Joe said...
This comment has been removed by the author.
Joe said...

I will continue to note that there should at least be audio for opinion announcements and other non-argument matters. Well, the latter would be prime material for video actually as were the swear-in ceremonies (there are two, so use one) of justices.

These are if anything the apex of for public showing moments and don't even have the concern of lawyer showboating (though our neighbor to the North manages with video without that apparently being a big problem). SCOTUS doesn't provide the transcript to opinion announcements though does eventually. This is also rarely referenced and it is a pet peeve of mine.

"Unknown" basically says "I don't agree." Well, I don't agree with Unknown. That does save time, but it isn't too convincing. PrawfsBlawg summarized things including noting that video would be educational for the legal profession as well as generally to promote transparency:

Yes, this is not a driving concern of the population; only a minority watch C-SPAN in general. So, this isn't going to impress various people as a compelling concern. But, especially as justices go on book tours etc., there is simply little reason for the oral arguments not to be broadcast. Humans benefit from video in ways pure audio does not provide. This is why the media just don't listen on the radio.

Joseph said...

"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."

When it comes to the Court's decisions, truly historic governmental business is meant to be transacted largely in private away from the American people. Airing oral arguments would seem to be pseudo-transparency and I'm not sure what the real target problem is. That some people will be occasionally curious, that deliberations are "historic," and video clips might be used to push a preferred narrative don't seem compelling to me, especially given the downsides of televised media. That the risks could be managed doesn't change human behavior. If the hope is that the Court will change for the better - the typical goal of more transparency in government - how do you hope it would?

Joe said...

Oral arguments are not "private" -- a small group of people [many more in few minute increments] are now able to see them, particularly if you are a member of the media. Why are they open to the public at all if it is a 'pseudo' thing?

C-SPAN transmissions for Congress has in effect created demand -- it is readily available and some people are interested who otherwise would not be. This would be true even if C-SPAN online provided transcripts and audio of the same materials.

Talk of "downsides" of televised media is one sided. Would we rather merely radio? No, because video as a whole is a positive thing.

As to how it will change, the professor can say, but transparency to me is overall a good thing to generally inform and to some extent re-assure the public at large. Even if the Court doesn't change, transparency is a good thing. I don't think the Court will really change much at all. We had years of audio and ready transcripts as well as things like Scotusblog live-tweeting opinion announcements. For me personally, that's great, but the net change it all brings is unclear.

Unknown said...

@Joe: If "video as a whole is a positive thing", what of value is created by it?

Shag from Brookline said...

Was there no need to change the procedures on cameras for House and Senate? How has it worked out? I subscribe to the lowest cable package and have access only to CSPAN on the House side and have found it boring and self serving with very little serious debate. But I understand many enjoy and benefit from this. (I do enjoy some other features that CSPAN presents when the House is not in session.) Congress is an elective branch and there are many means for obtaining information on what Congress and its members do.

One of the complaints heard nowadays is that the non-elective Court is less accountable than the elective branches. Delayed audio releases of oral arguments/transcripts open up the non-elective Court a tad. But live TV for orals might better address accountability for the large percentage that does not hold the Court in high regard. The nomination process in recent years has included live TV sessions of the Senate. Many sitting Justices have well survived this process and some seem to thrive on TV at certain non-Court venues. So some Justices are quite visible, when they want to be visible. Perhaps being invisible at Orals (except to those in the Courtroom) is some how empowering (unlike Ralph Ellison's Invisible Man).

Unknown said...

@Shag: While there was no need for the congress to allow cameras, the legislature is limited to making laws and has no authority to interpret them and is not charged with providing equal justice under the law; the courts are. In My estimation, the grandstanding You describe seems detrimental to Our collective political integrity.

I contend the "less accountable to Voters" aspect of the courts is a good thing; justice should never be subject to the passions of the People. I am hard pressed, meanwhile, to think of a corrupt federal Judge the congress has failed to successfully remove and/or neutralize in influence.

I wholeheartedly agree the invisibility of the Justices helps to ensure focusing on the issues and not on the 6 o'clock news imagery.

Shag from Brookline said...

It's not accountability to voters that the Court should provide but accountability to all in America. Corruption can be in the eye of the beholder. And how good is the Court's record for actually "providing equal justice under the law" over the history of the Court? And it would be naive, even of a naif known or unknown, to think that the Court is not political. Public opinion matters. Recall Finley Peter Dunne's Mr. Dooley's observation that the Court follows the "illiction returns."

By the way, the Court DOES make the 6 o'clock news - and the Justices know it.

Eric Segall said...

The only comment I want to add is that I don't have to be right just reasonable. If reasonable minds can differ, shouldn't a tie go to transparency (as long as we are not talking military secrets, personnel matters, etc.,).