Today in the Community: October 24, 2011
on Oct 24, 2011 at 8:24 am
Today in the Community we are discussing United States v. Jones, one of the most anticipated cases of this Term. In Jones, the Court will consider whether the government violated the Fourth Amendment when it attached a GPS tracking device to an individual’s vehicle without his permission or a warrant and then used the device to monitor his movements. It raises one of the most pressing issues in constitutional law today, which is whether and how the law should evolve in response to advances in technology. The case is scheduled for oral argument on November 8, and we will be collecting thoughts and perspectives from the Community all week.
Later in the week, we will be opening Community topics on M.B.Z. v. Clinton, Arizona v. United States, the Supreme Court and arbitration, and Supreme Court clinics at law schools. Here are five of our favorite comments from the discussion about cameras in the courtroom:
Dahlia Lithwick –
Sometimes I feel like Tony Mauro and I are the ancient mariners of cameras in the courts. We write and say it and write it again, and everyone walks away dead certain that the court is too magical and special and complicated to debase with gavel to gavel tv coverage. Bracket the fact that in democracies we don’t believe in secret government. Bracket the facts that courts around the world do it without spiraling inexorably into dancing with the stars mayhem. Somehow the US Supreme Court is even more different than all those different courts. So here’s a closing argument: It’s not like we don’t currently televise the Justices. We televise them dodging and evading at their confirmation hearings. We televise them clapping and sitting stonily at State of the Union speeches. We televise them ambling about the court when they have a book or pet project to promote. The only thing we don’t televise is them doing the sober serious hard work of talking about cases. Instead of seeing them at their best we see canned images of them acting as cartoon versions of themselves. And if that isn’t the very definition of reality television, I don’t know what is.
Tony Mauro –
Ideally, the Supreme Court itself would take this public-minded step on its own. In the information age, with the worldwide momentum toward transparency and access growing every day, the idea that the Court still bars cameras is anachronistic to say the least. The public would learn so much, whether from gavel-to-gavel C-SPAN coverage or from the much-feared “snippets” on the evening news.
But if the Court does not act, I don’t see why Congress could not. Acts of Congress dictate the size and quorum of the Court (28 U.S.C. 1) and when the Court’s session should begin (28 U.S.C. 2), so something as unremarkable as camera access seems to be a “lesser included” kind of regulation of the Court.
Justice Kennedy has said that forcing cameras in the Court by statute would violate the “etiquette” between the two branches, in the sense of “We don’t tell you what to do, so you shouldn’t tell us what to do.” This is a subcategory of the overall argument the justices make, which is that the Supreme Court is unique, and should not be treated like any other government institution. Of course the Court is unique in many ways, but most of those ways should argue for, not against camera access. As the unelected, life-tenured branch, it could be argued that the Court is especially immune from being influenced by the cameras. So why not let them in?
I’ve elaborated on the exceptionalist arguments made against cameras in a recent law review article in the Reynolds Courts & Media Law Journal, titled “Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism.” Available on ssrn at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945361
David LeRoy –
Absolutely not. I do not see how televised transmission of ANY court proceeding, especially of the Supreme Court, enhances justice. In fact, a good case can be made that it serves to create a circus atmosphere, especially in high profile cases (Casey Anthony, OJ Simpson, the current Michael Jackson case). Besides, by the time oral arguments roll around, the majority of Justices have already formed a general opinion and idea of how they will decide the case. If the issue is “transparency,” then is anyone suggesting we put cameras in the conference room? In their chambers? How about publishing the internal memos when they are striving to gain consensus on a decision?
Also, televised Court sessions would appeal to a very tiny slice of the interested public and would receive ratings somewhere south of the ratings for House or Senate sessions on C-SPAN. The arguments are generally esoteric and highly “legalistic,” which would turn off most viewers before one reaches the equivalent of page 3 on the official transcripts which, incidentally, are available as well as all the briefs filed and audio coverage.
Finally, the Supreme Court derives it legitimacy by being an independent branch of government. While I do not think that cameras would change that, I also do not see how cameras advance any legitimate interest.
Brian Lusignan –
In New York, where I practice, the Court of Appeals (which is the highest court in New York) broadcasts live webcasts of all oral arguments and then archives the webcasts for future access. In most cases, these webcasts go unnoticed by the media and public. In occasional high profile cases, the media will use clips from the oral arguments or even broadcast an entire oral argument. I have seen no evidence that the availability of these videos creates a misconception about what the court does. To the contrary, it allows the public to see and hear the judges doing their jobs.
I am particularly puzzled by Justice Breyer’s concern that people won’t recognize that oral arguments are only a part of the Court’s work. Oral arguments are emblematic of our adversarial system, even if they make up a small portion of the Court’s work and even if they might not affect the outcome of a case in most cases. I think there is value in being able to see this appellate process in action. The vast majority of what the other branches of government do is of no interest to the public (see, e.g., C-SPAN), but that does not mean that their work should be reserved for sole dissemination through print reporters.
To see the oral argument archive of the New York Court of Appeals, go here: http://www.courts.state.ny.us/ctapps/
Michelle Olsen –
There have been signs of hope, including a pilot video program in the lower courts, as well as increased access to transcripts and audio, both now on the Court’s website.
This summer, Chief Justice Roberts listed these developments in a presentation to the Fourth Circuit Judicial Conference. The Court is, Roberts said, “moving in a particular direction.” The Chief made clear that “movement will be gradual” and that the Court is especially concerned about video, but I hear progress in his comments.
Though still disappointing to the media, the audio change—from yearly to weekly release (online)—was a huge leap forward for access. (As someone who has waited months for audio and then schlepped to the National Archives to get it, I can say this personally.) Hopefully, similar steps are to come. For instance, I could see same-day audio being offered, as it is now for transcripts. The Court could gauge effects it fears (e.g., Does same-day reporting of voice snippets negatively affect the live presentation?), without launching headlong into video just yet.
Will cameras at the Court beat the next batch of Brood X cicadas to Washington, D.C. (ten more years)? I don’t know, but I think there is something more pleasant, but equally inevitable and organic happening with cameras. They are coming.
Roberts Presentation (see discussion starting at 41:15): http://www.c-spanvideo.org/program/300203-1
Pilot Video Program: http://www.uscourts.gov/Multimedia/cameras.aspx