News Media & The Law photo by Jamie Schuman
It was pouring rain the last day the Supreme Court heard oral argument this spring, but that didn’t stop James Armstrong from waiting in a line more than 50-yards long to try to get a seat in the courtroom.
He wanted to see the case, a patent dispute, but braving the elements was the only way to do so because the Supreme Court does not televise oral arguments.
Umbrella in hand and in town from California, Armstrong questioned this policy.
“Justice should be done in the open,” he said.
As other courts have increasingly let in cameras, open-government advocates have heightened calls for the Supreme Court to do so too. The justices, however, remain opposed to the idea.
When a group of media and legal organizations known as the Coalition for Court Transparency petitioned Chief Justice John Roberts in March to start televising arguments, the Court’s press office sent a curt reply: “There are no plans to change the Court’s current practices.” (The Reporters Committee is a member of the coalition.)
Over the years, justices have given many reasons for banning cameras. Among them: the Court needs to preserve its tradition; people will not understand the function of oral arguments; the media will use embarrassing sound bites; and cameras will encourage showboating.
But many Supreme Court reporters and lawyers who study the topic say these justifications are flimsy at best. The benefits of broadcasting arguments, they say, far outweigh the risks.
“There’s a real hunger out there from people to know more about the Supreme Court and the justices,” said Ariane de Vogue, Supreme Court correspondent for ABC News. “I think it would be a marvelous educational opportunity.”
News Media & The Law photo by Jamie Schuman
Cameras not allowed
In addition to not permitting cameras, the Court waits until the Friday after each argument to release audio recordings. Before 2010, it only provided audio from a given term’s hearings at the start of the next term. The Court has made exceptions and released same-day audio for about 25 high-profile cases since 2000, but has provided that service far less frequently since the 2010 rule change.
Audio recordings of opinion announcements are not available until the fall after cases are decided, a policy that famously contributed to some news outlets initially misreporting the healthcare rulings in 2012.
Though anyone can get same-day written transcripts of oral arguments and opinion announcements, the delay in releasing audio recordings and the failure to release video is out-of-sync with the realities of the media industry.
“If the news happens on Wednesday, you want to hear [the justices] on Wednesday,” de Vogue said.
De Vogue said that on the rare days that the Court provided same-day audio, she used clips in her television reports and got positive feedback from viewers.
“I think people really like to hear the voices of the justices,” she said.
An institution steeped in tradition
The Supreme Court’s camera policy is somewhat of an anomaly. Every state supreme court allows cameras, and so do the highest courts in Canada, the United Kingdom and Australia. The U.S. Court of Appeals for the Ninth Circuit began live streaming oral arguments this winter. In 2010, about 15 federal district courts began videotaping proceedings through a pilot program launched by the Judicial Conference, which oversees the federal judiciary except for the Supreme Court. C-SPAN has long televised Congressional hearings.
The Supreme Court, meanwhile, gives lawyers who argue there a quill pen and still uses elevator operators in its building, said Jerry Goldman, director of the Oyez Project at Chicago-Kent College of Law at the Illinois Institute of Technology.
“It’s just uncomfortable with change,” said Goldman, whose website catalogs oral argument audio. “They’re always in the caboose.”
Sonja West, a media law professor at the University of Georgia School of Law, explained that the justices may be so reluctant to lift the camera ban because they fear breaking a system that they see as working well.
“They feel very much like the guardians of a very important institution,” said West, who wrote about the Court’s camera policy in the Brigham Young University Law Review.
Tradition is so important to the Court, West said, because public respect is a key source of its power. Unlike Congress and the President, the justices do not control the nation’s finances or military.
But Eric Segall, a constitutional law professor at Georgia State University, argues that the justices should not treat themselves differently from other government officials. As is true for other branches, the presumption should be for transparency, he said. The Court should have the burden of proving why cameras should not be allowed, and not the other way around.
“This is a public hearing,” Segall said. “It’s open to the public. It’s material. It’s relevant, and people want to televise it. We should be allowed to see it.”
Some journalists who cover the Court and professors who study it say reasons the justices have given for denying camera access – such as public misunderstanding, misleading reporting and participant grandstanding – do not overcome the presumption of openness.
“We have three branches of government,” Dahlia Lithwick, who covers the Supreme Court for Slate, said about camera access. “Two of them are totally transparent, and one of them is completely secret, and that’s a problem.”
Access Myth #1: The Public Just Won’t Understand
Some justices have said they oppose cameras because they think people may not understand oral arguments or their role in the outcome of the case. Justice Antonin Scalia once remarked that the complexity of the law “is why the University of Chicago Law Review is not sold at the 7-Eleven.”
Justice Sonia Sotomayor told a reporter that arguments should not be televised in part because most viewers “don’t take the time to appreciate what the Court is doing.”
One worry is that the public will overestimate the impact of lawyers’ oral advocacy skills on decisions in cases, and underestimate the role that briefs play. Another is that people will not realize that justices play devil’s advocate when they ask certain questions.
To Segall, this view has it backwards. Broadcasts of arguments would help the public learn about the Court’s operations, he said.
“The more we see Justice [Antonin] Scalia being obnoxious, the more we see Justice [Anthony] Kennedy acting like a law professor, the more we see Justice [Clarence] Thomas sitting there and doing nothing, the more we have insight into the people who work for us,” Segall said.
Shannon Bream, who covers the Court for Fox News, agreed that broadcasts would help people understand the work of the justices.
“It gives much more nuance to their concerns, their questions, [and] their positions,” she said.
And Armstrong, waiting in the rain to see the patent case, Limelight Networks, Inc. v. Akamai Technologies, Inc., thought public confusion was no reason to ban cameras.
“A lot of the stuff they argue might be esoteric and it might be arcane, but it should still be open,” he said.
Access Myth #2: The Jon Stewart Effect
Justices also have warned that if video is available, journalists will take quotes from hearings out of context and use them as sound bites on the evening news.
Justice Kennedy once said he does not want the Court to become part of “the national entertainment network.” And Justice Scalia told the Senate Judiciary Committee, “[F]or every ten people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a thirty-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do.”
To NBC News justice correspondent Pete Williams, any worries about journalists using snippets are baseless. Reporters already use short quotes from oral arguments in their stories, and mass confusion has not ensued, he said at a Reporters Committee panel on Supreme Court transparency last October.
Lithwick said video would make coverage of the Court more truthful.
“One way to get it right is to not have middlemen, not have us interpreting and shading and editorializing,” she said. “If you put out video, I think the argument can be made that it’s not distorting what the Court does; it’s actually making it clear.”
Even if reporters get the story wrong, Segall said, that’s no reason to keep cameras out. “We don’t censor speech because it’s possibly misleading,” he said. “We ask for more speech.”
Some commentators argue that concerns about sound bites are less about how mainstream reporters will use clips and more about what late-night comedians will do with them.
“I think they fear being made fun of by Jon Stewart on ‘The Daily Show,’” Williams said at the Reporters Committee panel.
But Stewart has found ways to mock the justices even without video or timely audio. In a piece on campaign-finance case McCutcheon v. Federal Election Commission that also touched on the cameras issue, the comedian showed fake courtroom sketches of conservative justices sitting in a hot tub full of money and of liberal justices smoking a hookah. He then quipped, “Apparently, the only thing so corrosive to the process that it can never be allowed to exert its unholy influence upon our sacred democratic institutions is transparency.”
Access Myth #3: Showboating for the cameras
Some justices have also cited grandstanding as a reason for not wanting cameras. The worry is that lawyers will act out for the televised audience or that the justices themselves will change their behavior.
But the experience in the 50 state high courts shows that this result has not materialized, West said. Most attorneys forget that they are being filmed, she said, and, even without cameras, Supreme Court advocates already are acutely aware that they are on a big stage.
At the Reporters Committee fall panel, Ohio Supreme Court Chief Justice Maureen O’Connor said that, in the ten years that her court has broadcast oral arguments live, an attorney turned to the camera and acknowledged the outside audience only one time. After a justice admonished the lawyer, he quickly stopped the behavior, O’Connor said.
“Over my dead body”
Former Justice David Souter told Congress in 1996, “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Though many open-government advocates are confident that the Court will allow cameras one day, they don’t necessarily expect that day to come soon.
Bills on the matter have fallen flat in Congress. New appointees – such as Justices Elena Kagan and Sotomayor – have shown support for cameras during their confirmation hearings, but have changed their minds after joining the bench.
Some access proponents have suggested that the justices adopt intermediate steps – such as same-day audio or live audio – as a test-run before allowing cameras.
“They don’t have to jump in the deep end right from the beginning,” West said.
The Coalition for Court Transparency, in its March letter, asked the Court to consider releasing same-day audio – which would still be timely for newscasts – if it rejected live video.
Even if the Court continues to oppose cameras, a recent security breach shows that the technology can find a way into the courtroom anyway. An audience-member snuck a camera through security for a February oral argument, and posted a two-minute clip of the hearing on YouTube.
As cameras become smaller and harder to detect, the Court should realize the wisdom of reforming access policies on its own terms, West said.
Bream, of Fox News, is optimistic that the Court will televise arguments someday. As technology advances and new generations of justices become more comfortable with it, “it’s only a matter of time,” she said.
Until that time, people who want to see arguments and who don’t have a special connection to the Court have only one option: line up early in the morning (or a few days earlier for blockbuster cases) for one of the 250 or so public seats – although even that many are rarely made available by the Court.
Kieran McCarthy, a law student who did just that to hear the patent case on that rainy late April day, suggested a modest reform for the justices. “If they could put up a bus shelter for us, it might be nice in the rain,” he said.