Cameras in the Supreme Court

When supply does not sufficiently keep up with demand, we have long lines. We see them at movie theatres, restaurants, and, yes, even the U.S. Supreme Court. The Supreme Court is our most open branch of government. Everything that is supposed to go into the decision—the briefs and appendices—is public. We have no lobbyists talking in secret to the justices. Indeed, the rules against ex parte conversations forbid that.

Similarly, all the reasons for the decision are public. We see them in the opinions. Granted, the justices discuss the arguments among themselves, in private, but those arguments are not part of the decision. The Court issues no press releases explaining the decisions; the decisions themselves do all the explaining.

When the lawyers argue before the Court, that also is public. The oral arguments are open to the public and there is no charge to see them. For many argument days, that is no problem. Tourists and lawyers simply line up and are escorted into the large, august room where each justice has his or own individual (non-uniform and non-government-issued) chair.

When more people want to hear an argument (or hear the justices announce their decisions), there will be a line and not everyone will get admission because even the large hearing room is finite. Lawyers who are members of the Supreme Court bar have their own line, which tends to be shorter, but it still is a line and, for the most controversial cases, not everyone will get in. As one might expect, some people have more money than time and others have more time than money, so some people pay others to stand in line for them.

The idea of a queue bothers some of the justices. What to do? One obvious alternative is to do what movie theaters do. They expand the number of screens showing the favorite movie. The movie theatres may raise their prices (or not accept discounted coupons) for very popular movies. These changes are a familiar aspect of capitalism.

In the case of the lawyers’ line, some lawyers pay others to hold their place in line. Everyone is happy: one person with time on his or her hands makes a little money for what is a low tension, unskilled job. The other person, the lawyer, does not have to spend hours in line.

What does the Supreme Court do? It bans line-standing. From now on, every lawyer is standing in line for himself or herself and no others. The lawyer must show the court clerk’s assistant a photo identification card. The court staff will check each name against the bar membership roster. The court staff will allow admission only to the lawyer whose face matches the photo identification. It turns out that some justices are upset.

Frankly, one would not think that the justices of the highest court in the land would have time to be upset that a lawyer pays another person to stand in line. What the justices should worry about instead is that it has created rules that require lines.

Why not just allow streaming video of the oral arguments? Lawyers (and tourists) could watch the arguments live, in the comfort of their own abode. The Supreme Court already broadcasts live audio of the oral arguments into the lawyers’ lounge of the Supreme Court. It is, technically speaking, child’s play to stream live video to the lawyers’ lounge and to the entire world via the Internet.

Justice Breyer, appearing on The Late Show, with Stephen Colbert, responded to Colbert’s questions about the lack of cameras in the courts. Breyer said that the justices should not become personalities but should just do their work out of the public glare. Yes, Justice Breyer made that argument while appearing on Late Night TV, hawking his new book.

Breyer also asked, rhetorically, of the viewers, “Will they understand the whole story, will they understand what we’re doing, will there be distortions?” Frankly, that is an unusual argument. There cannot be distortions if people see the actual arguments. Right now all anyone (except the few who stand in line) can “see” is what a print or media journalist tells them. If a commentator says, “the justice responded testily,” or, ”one justice appeared angry with his colleagues,” there is no way we can determine whether the commentator distorted what happened.

In the nineteenth century, it was common for the courthouse to be the biggest building in each county. Most citizens could fit into the courtroom and see for themselves what was going on. Now, no courtroom is big enough. Decades ago, we relied on the print journalists to interpret for use what was happening. Later, radio and television allowed us to hear or see the news nearly contemporaneously, but the Supreme Court acts like those inventions do not exist.

If the Supreme Court allows cameras in the court, there should be little worry that the justices would ham it up for the camera. The justices, after all, have lifetime tenure and salary protection. They do not run for reelection. And, if we discover that a justice is so superficial that he or she is playing to the cameras, we might as well know about it. The American people are not fools. We deserve to know about the caliber of our justices without any reporters interpreting for us.

Cameras are very small and unobtrusive. They can be fixed, pointing to the lawyer when she is talking and then pointing to the justices when they ask questions. Far from distorting what is going on, the cameras will enlighten us. People can see that the justices are, very often, deciding difficult issues, asking about the reach of precedent, questioning the lawyers about how the rule in one case will affect hypothetical cases on the horizon.

The great majority of the states allow cameras in the courtroom, to televise trials and the oral arguments of the lawyers. These states have studied the effects of cameras in the courts, and the judges and lawyers who have experienced cameras in the courts all conclude that cameras did not alter the behavior of the participants. Unlike trials, cases before the Supreme Court have no witnesses whom the cameras could conceivably affect. Similarly, they have no jurors—just lawyers and justices.

Many countries in Western Europe and South America allow cameras in their courts. The World Court at The Hague allows cameras. We have had a cable television channel, Court TV (later truTV), devoted to televising complete trials. The version in Canada is called Court TV Canada. Canada already broadcasts is Supreme Court hearings.

People have long been fascinated with trials. More reporters covered the 1934 Lindbergh Kidnapping Trial, the “Crime of the Century,” than were sent to France to cover World War II. There is nothing wrong or distorting about the American people seeing and hearing what the justices actually do.

In 2012, Senator Chuck Grassley asked Chief Justice Roberts to allow cameras in the Supreme Court so that the American people could see for themselves the oral arguments involving the constitutional challenge to the Affordable Care Act, popularly called ObamaCare. Chief Justice Roberts did not allow that. He did allow the Court to release audio recordings and written transcripts of the oral arguments each afternoon of the proceedings. Yet, if the Chief is willing to go that far, why not take the last step and allow everyone to be (virtually) in the courtroom so no one has to stay in line. As Senator Grassley noted at the time:

Every American should have the opportunity to see and hear this landmark case as it plays out, not just the select few allowed in the courtroom. The health care reform law has ramifications for the entire country. Video coverage would help with the public’s understanding of not only the controversial new law, but also the American judicial system. It’s disappointing that the Chief Justice isn’t allowing video coverage of the case, but I appreciate his willingness to provide expedited release of the audio and transcript to the American people.