A Symposium on “Cameras in the Court”

With this post, we welcome new SCOTUSblog contributor Ben Winograd, who will be joining Akin Gump and the SCOTUSblog team full-time next month. A recent graduate of Northwestern’s Journalism and Legal Studies Program, Ben has previously contributed to (among others) the Wall Street Journal’s Law Blog and will be a second-year at Georgetown University Law Center in the fall.

First Impressions, the online edition of the University of Michigan Law Review, posted a symposium on Wednesday probing the ever provocative (at least to SCOTUSblog readers) topic of televising Supreme Court public proceedings (it can be found here). The symposium comes four months after Senator Arlen Specter introduced legislation requiring the Supreme Court to permit television coverage of all open sessions, unless a majority of justices found doing so would violate the due process rights of one or more parties before the court. Senator Specter’s recent legislation is identical to a bill he submitted in 2005, which passed the Senate Judiciary Committee – then headed by Specter himself – but never reached a floor vote. Now chaired by Senator Patrick Leahy, the committee has discussed but not yet voted on Specter’s current bill, which is co-sponsored by three Democratic (Durbin, Feingold and Schumer) and two Republican (Grassley, Cornyn) senators.

By way of background, the current Justices have widely opposed televising their public proceedings over the years, perhaps none more famously than David H. Souter, who testified before Congress that any cameras entering the Court would have to “roll over my dead body.” (For a summary of the Justices’ public comments on the matter, click here.) In general, opponents offer four main arguments against televised coverage. First, they fear the media’s obsession with sound bites will lead to snippets from oral argument being taken out of context and unreflective of the true issues before the court. Second, opponents say the presence of cameras could lead to grandstanding by the advocates or even the Justices themselves. Third, opponents say televising oral arguments would demean the legal problems – if not jeopardize the due process rights – of parties before the court. Fourth, they say increased visual exposure could jeopardize the Justices’ safety.

The Michigan symposium provides seven essays – reflecting a variety of views – written by contributors from the academy, media, and legal profession, including a judge from the Sixth Circuit, a former Supreme Court clerk and a vice president of C-SPAN. While we encourage readers to read the symposium in its entirety (click here), we’ve summarized the arguments of each contributor below.

* Leading things off, Sixth Circuit Judge Boyce F. Martin, Jr., calls many of the Justices’ stated reasons for opposing television coverage “overblown,” concluding that any costs of broadcasting oral arguments are well worth the potential benefits. He gives little credit to the “sound bite” and “grandstanding” problems, arguing written opinions already are subject to selective quotation, and any Justice wanting media attention at present can offer catchy phrases for print reporters. Furthermore, Martin writes that viewers would most likely view oral arguments on the Internet, increasing chances they would watch from start to finish. As for safety concerns, Martin notes a Google search provides ready access to images of all the Justices. He also notes that numerous Justices have themselves sought the spotlight – in lectures, debates, and television appearances – though does not directly suggest they undercut safety concerns by doing so. Whatever the merits of the Justices’ concerns about television coverage, Martin concludes, they are outweighed both by heightened public awareness of how the Justices reach their decisions, and by the lawyers’ ability to better prepare for oral arguments before the court.

* Christina B. Whitman, a Michigan law professor and former clerk to Justice Powell, calls televising oral arguments a “terrible idea.” Doing so would give the public a misleading impression of their ultimate importance, she writes, and is unnecessary for an institution that at present is more open than the other two branches of government. Whitman argues the Justices’ true thinking often does not come out at oral argument, either because they do most of their reasoning through memos – as did Justice Powell – or because they enjoy jousting with attorneys for its own sake. Overall, “their dialogue may or may not focus on what really matters to their decision in a case,” she writes. Whitman also argues that while the judiciary may be the least democratic of the government branches, the practice of issuing written opinions already makes it the most intellectually accountable for its decisions.

* Tony Mauro, the Supreme Court correspondent for American Lawyer Media, calls Specter’s proposal long overdue, but worries the Senator’s public justifications for the bill could antagonize the Justices and lessen its chances of passage. Mauro notes that Specter has said Justices’ recent public television appearances undercut any potential safety concerns related to television coverage. He also writes that Specter has frequently criticized the Court’s decisions in City of Boerne v. Flores (for finding Congress overstepped its Section 5 powers) and U.S. v. Morrison (for finding Congress overstepped its Commerce and Section 5 powers), and has argued that television coverage would enable the public to judge whether the Justices were acting as a super-legislature. “When he speaks this way, it is hard not to conclude Specter’s objective is not merely to let the sun shine in, but also to train an accusatory spotlight on the Justices,” Mauro writes. Noting a clearly rankled Justice Kennedy referred to Specter’s second argument as a “non sequitur” during his February appearance before the Senate Judiciary Committee, Mauro advises the senator to “take Kennedy’s hint and argue for cameras in the Court as a public good, not as punishment.”

* Bruce D. Collins, a corporate vice president and general counsel for C-SPAN, reviews the organization’s efforts to persuade the Supreme Court to permit television coverage. He writes that C-SPAN first proposed offering “gavel to gavel” coverage of all Supreme Court oral arguments in 1988. Then-Chief Justice Rehnquist referred the proposal to conference, but the justices maintained their “no camera” policy, he writes. Later that year, C-SPAN conducted a short demonstration in which three Justices participated to show how cameras and other technical aspects of televising arguments would operate – but nothing came of it. In late 2000, the Court rejected C-SPAN’s request to broadcast Bush v. Palm Beach County Canvassing Board, but for the first time released audio recordings immediately after oral argument in both that case and in Bush v. Gore. Collins writes that as recently as October 2005, C-SPAN renewed the offer to Chief Justice Roberts that the organization made to Rehnquist in 1988. While C-SPAN will continue to air programming related to the judiciary and the Supreme Court, Collins writes, “we do so without any real expectation that cameras will be allowed in its chamber any time soon.”

* Kenneth N. Flaxman, a Chicago lawyer representing civil plaintiffs and criminal defendants, asks simply whether televising arguments will make his job easier. Having argued five cases before the Court, he says the answer is a “resounding” yes. Flaxman’s reasons focus less on practical tips lawyer might gain from watching the Justices in action, however, and more on the effect of television coverage on the Justices themselves. Having cameras in the Court will “encourage better judicial behavior,” Flaxman writes, by threatening to expose those who make stupid comments, stay on the bench past their prime, or engage in side conversations with other Justices rather than ask questions. By presumably forcing Justices to alter their conduct, having cameras in the Court will “enhance the integrity of the decisional process,” he writes.

* Bruce Peabody, an associate political science professor at Fairleigh Dickinson University, examines whether Specter’s proposal will unsettle what he calls the longstanding observance of “constitutional etiquette” between the branches. He writes that members of the different branches have long followed unwritten rules to ease tensions between the branches, rather than out of any legal obligations. As examples, he cites the executive and legislative branches’ practice of respecting judicial opinions beyond the actual parties in the case, and the courts’ own habit of not deciding “political questions.” Peabody ultimately takes no position on the merits of Specter’s bill or whether it would constitute a breach of “constitutional etiquette,” saying the matter deserves further study.

* Last, First Impressions editor Scott C. Wilcox offers a compromise based on his observation that those who oppose cameras in the court seem to object not to the recording of oral arguments, but the broadcasting of them to a large audience. The second-year Michigan law student thus proposes that the Supreme Court voluntarily begin video-recording its proceedings and providing footage to the National Archives, where it would remain available for public viewing under conditions the Justices themselves establish. To be sure, Wilcox remains skeptical of opposition to televising the Court’s proceeding, and acknowledges his proposal could well disappoint those seeking wider access to the Court. At present, however, he maintains his idea “is the most viable means of achieving greater access to the Court.”