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Kali Borkoski Former Manager

Posted Fri, October 21st, 2011 9:29 am

Cameras at the Court

Many unsuccessful attempts have been made to persuade the Court to televise its proceedings.  In recent years, several bills to allow television cameras in the courtroom have been introduced in the Senate, and C-SPAN has been asking the Court to televise its proceedings since 1988, but none of these efforts has gained traction with the Court.  In 1996, now-retired Justice David Souter famously told a House Appropriations subcommittee, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”  That attitude may be changing, however, as new Justices – some of whom have had positive experiences with televising courtroom proceedings – join the Court. Today in the Community we would like to hear your thoughts on whether the Court should allow its proceedings to be televised, as well as the issues implicated by such a decision.

  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss the separation of powers and whether the decision to allow cameras in the Courtroom falls under the purview of the Senate or the Court.

    • Tony Mauro – 2 Promoted Comments

      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

    • Bruce Peabody – 1 Promoted Comment

      Would requiring the Supreme Court to broadcast proceedings it is already making available to a (tiny) portion of the populace really threaten its functions and independence?

      Some recent critics of televising the Court, such as Ed Whelan, have fretted that TV coverage would alter the quality of the Court’s deliberations and lead to “grandstanding” by the justices and attorneys. First, some of this occurs already. It would be naive to think, for example, that interest groups submitting amicus briefs are solely interested in how these materials are consumed by the Court as opposed to say, constituents, the media, and potential funders.

      Second, an attorney who “grandstands” before the Court would presumably do so at his or her peril. A lawyer who forsakes her role as an advocate to address some perceived external audience risks losing, being embarrassed, or both. Oral argument can be an unforgiving stage, and whether televised or not, the justices would still be able to police its content and tone.

      Would televising the Court lead the public to view its proceedings with incomplete context and understanding, a concern raised by Justice Scalia and political scientist Dina Schaub? Of course. But this is an unreasonable standard, especially in our complex, diffuse, separation of powers system. Few would argue that we should shut down C-SPAN because the public doesn’t understand, say, the finer points of cloture or the “king of the hill” rule, or because a news network might show a five second clip of a Senator’s speech rather than the entire hour long monologue.

      As the Court itself has conceded, Congress has long regulated “the conduct” of federal courts “and the means by which their judgments are enforced.” Anyone raising separation of powers concerns about “Supreme Court TV” will have to account for seemingly far more invasive (but widely accepted) statutory regulations of the Court. These include laws dictating the size of the Court, its standards for establishing seniority and a quorum, and the status of some of its key personnel (such as law clerks). Congress would have compelling policy rationale and legal arguments on its side if it ever chose to push the Court’s relationship with the media into the twentieth century, never mind the twenty first.

  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss the issue of public confidence in, and access to, the Court, especially as these concerns relate to a First Amendment interest in news gathering.

    • Dahlia Lithwick – 2 Promoted Comments

      Sometimes I feel like Tony Mauro and I are the ancient mariners of cameras in the courts. We write and 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 dont 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 arguemnt: 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.

      • Jack Albertson – 0 Promoted Comments

        While sympathetic to your mariner’s cry for cameras in the Supreme Court, I do not agree that their absence from the courtroom is the hallmark of “secret government.” To the contrary, much of the Court’s work is open for the public to see, even without television cameras: the oral arguments are physically open to the public and available in both audio and transcript at the Court’s official website; the briefs of the parties in each case are also available online; and, most importantly, every decision on the merits of a case is in the form of a written opinion setting forth the reasons for the Court’s action. The only “secretive” part of the process is the justice’s deliberations among themselves, and one could hardly expect to have those discussions on display for public viewing. In short, the Court is truly one of the most open of our three branches of government.

        Besides, the public’s historical confidence in the Court has rested largely on the fact that it is unlike the political branches. For, unlike its political counterparts, the Court does not seek to aggrandize its individual members through increased publicity. Instead, it grapples with some of the thorniest problems facing the nation, and does so in a way that places the emphasis, not on the deliberative process, but on the decision itself. Because, ultimately, the public judges the Court, not by the questions the justices ask at oral argument, but by the decisions which they write. And is this not the best way to judge the Court’s work? Certainly, cameras in the courtroom would do nothing to inform, or enhance, that community judgment.

        Like you, I would find watching the Court at work to be fascinating television, and when the Court is ready to take that step, I will be all for it. But, until then, our inability to watch the justices as they ask their questions neither contributes to unnecessary secrecy in government nor deprives the American people of their ability to judge the Court and its work.

    • Mark Walsh – 1 Promoted Comment

      As a reporter who has covered the Supreme Court for the better part of the last 20 years, I’ve always been somewhat torn when it came to the question of televising the court’s oral arguments.

      My public-minded instincts accept that opening up the court is the right thing to do, and would provide the public a better understanding of the work of the court. But as a print reporter, I must confess that I have enjoyed ready access to sessions that are not widely available to the public via electronic media.

      Just about every other government proceeding is televised—virtually everything the president does in public, House and Senate floor sessions, committee hearings, city council and school board meetings. Courts are generally an exception, with trial courts in some states and a few appellate courts at the state and federal levels welcoming cameras. But the Supreme Court has been a notable holdout, even if it has gradually opened up in other ways under Chief Justice Roberts. Oral argument transcripts are available the same day, and audio recordings of every session are now made available at the end of each week of argument.

      The audio policy doesn’t please radio and TV reporters who don’t have timely use of sound bites for their same-day reports, but the transcript and audio practices do make it much easier for interested observers outside of Washington get a sense of oral arguments.

      At some point, likely later rather than sooner, the Supreme Court will become convinced that televising its arguments is the right thing to do. Perhaps it will start as an experiment with a major case—as same-day audio did with Bush v. Gore in 2000—and gradually be expanded to every argument. But I while acknowledge the benefit to others, I rue the day when covering an oral argument might mean watching it on TV in the press room or viewing it on my iPad at the Starbucks.

      • Kent Scheidegger – 6 Promoted Comments

        “The audio policy doesn’t please radio and TV reporters who don’t have timely use of sound bites for their same-day reports….”

        Therein lies the best argument against same-day televising. The evening news will carry sound bites or video bites, not full arguments. Some lawyers, regrettably, will say more audacious things in the hope of making it onto the evening news.

        I suggest extending the current audio policy into video. Make one recording under the control of the Court. Release it on Saturday. Play it in full on CSPAN. After that, it’s public domain. Video bites won’t be newsworthy enough at that point to make the evening news, but the full argument will be there for its educational value.

    • Brian Lusignan – 3 Promoted Comments

      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/

    • Mike Duffey – 0 Promoted Comments

      It seems that the current “fallback” concern about televising oral arguments is that only “snippets” will be played, thus misleading the public about the true nature and complexity of the issues presented in an argument. When balanced against the interest in access to public proceedings in one of the most important institutions of government, that concern is almost frivolous. For hundreds of years a lively press has reported “snippets” of Supreme Court arguments and other judicial and legislative proceedings throughout the country. Access to the full argument allows any citizen (not just the cognoscenti and the few who can squeeze into the courtroom) to see the larger picture if they choose. The editorial process – what to quote, summarize, or depict – is an essential element of the freedom of that press that the Court is charged with protecting. Restricting access to guard against “abuse” of that process demeans the Court’s role as the ultimate guardian of the First Amendment. The arguments should be televised live and be recorded – for unfettered use by the media and citizens as they choose.

    • Michelle Olsen – 1 Promoted Comment

      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

    • Lawrence Hurley – 1 Promoted Comment

      As some of the comments here suggest, one of the arguments about not having cameras seems to be that it protects what is a “special” institution from the grubbiness of live TV and all that entails. I couldn’t disagree more. The general public are already fairly suspicious about what the court does and how it does it. I can see only benefits to making the court’s activities significantly more transparent than they are, even if it does mean Jon Stewart having some fun with it every now and then. If the only thing people learn from TV coverage is that 90 percent of arguments are deathly dull, then that’s all good as far as I’m concerned.

      As for the argument that lawyers (and justices?) might play to the cameras, the court is already a public stage and I can think of a few people who already do seem to ham it up a little. I don’t think cameras would make any difference.

  • Kali Borkoski – 0 Promoted Comments

    In this thread discuss whether issues of widespread public interest – such as health care and immigration reform, marriage equality, and affirmative action – present unique justifications for or against televising Court proceedings.

  • David LeRoy – 4 Promoted Comments

    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.

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