Not ready for prime time
Despite growing support for cameras in the nation’s high court, many justices cite anonymity, court mystique as reasons for shuttering cameras.
From the Spring 2006 issue of The News Media & The Law, page 20.
By Amanda Buck
Supreme Court justices often do not speak publicly about allowing television coverage of the court. When they do, they are loath to explain why they do not allow it.
Concerns about misleading sound bites or a bias against nontelegenic justices aside, four longtime observers say the court’s opposition probably comes down to the justices not wanting to lose their anonymity or the court’s mystique.
“I have seen many of the justices speak in various situations where the question has been raised informally, and my take really is that it’s not so much they think [camera coverage] will compromise the integrity of the proceedings, so much as it’s a desire from them to preserve their anonymity and some of the mystery of the court,” said Kathleen Kirby, First Amendment counsel for the Radio-Television News Directors Association. RTNDA has lobbied for broadcast coverage of the nation’s courts for 50 years.
Fred Graham, a lawyer and senior editor at Court TV, reached the same conclusion about 10 years ago. A longtime court correspondent for print and broadcast, Graham was asked to dig into the justices’ camera resistance for a TV Guide piece. Concerns about personal privacy and the court’s mystique jumped out as the chief hurdles, he said.
Initially, the worries about anonymity struck Graham as self-centered.
“Back when [Justice] Byron White was commenting on it, it was just purely selfish on their part. They wanted to have all the power and glory that goes with being a justice, but they didn’t want to have the occasional discomfort of being recognized,” said Graham, a Reporters Committee founder and current Steering Committee member.
But the September 11 terrorist attacks and recent violence against federal judges added a new wrinkle. Justice Ruth Bader Ginsburg said in a speech in South Africa in February that she and retired Justice Sandra Day O’Connor had received death threats. In April, Justice Clarence Thomas told a House subcommittee that the loss of anonymity would raise security concerns for the justices. Graham said he expects to hear more of that line of thought if the justices testify on the issue.
“I think what they would say is, in the era of terrorism and violence that’s been directed at federal judges, that they would have to change their lives,” he said. “They couldn’t walk around — as they do pretty much routinely now — by themselves.”
Tony Mauro, a 25-year Supreme Court correspondent who writes for Legal Times and American Lawyer Media, agreed.
“They believe that anonymity is their first line of defense, and they want to keep it that way,” he said. Mauro recalled that when he reported a few years ago that Justice David Souter had been mugged near his home, some Supreme Court police officers told Mauro that the justices usually resist requests to beef up security.
“In a sense, [the privacy concern] is personal comfort, but it’s also a little more than that. The security aspect gives a little more heft to that creature comfort argument,” said Mauro, a longtime Reporters Committee Steering Committee member.
Bruce Collins, corporate vice president of C-SPAN, which has long argued for camera coverage, said privacy is paramount to the justices.
“It doesn’t matter to them what the rational arguments are about public access to a public institution,” he said. “It’s about them and their lives. They don’t want to be famous.”
In the mid-1980s, when William Rehnquist succeeded staunch camera opponent Warren Burger as chief justice, some observers thought the court might finally open its doors to cameras, Graham and Collins recalled. But high-profile media coverage of the Supreme Court confirmation hearings of unsuccessful nominee Judge Robert Bork in 1987 and the California murder trial of O.J. Simpson in 1995 stopped any momentum.
Although justices such as Samuel Alito, Stephen Breyer, Ginsburg and Chief Justice John Roberts have at times seemed open to the idea of cameras, no one interviewed counted on them to lead a charge for access.
Pledges by Roberts and Alito during their confirmation hearings to be open-minded about cameras are a “big step forward,” Kirby said. She and others interviewed agreed that in addition to worrying about their privacy, the justices fear TV coverage would damage the unique esteem in which Americans hold the court.
“They sincerely believe that the mystique of the court depends in some degree on the remoteness of the court,” Graham said.
“They don’t use ‘The Wizard of Oz’ effect, but I’ve used it,” he added. “It’s this idea that their support and prestige in the public is enhanced by the fact that they’re not too familiar. . . . They’re afraid, genuinely I think, that they would lose public esteem, which is all they have.”
Justice Antonin Scalia has raised a related concern, Mauro said.
“The idea Scalia has expressed most often is that common law judges are supposed to be in the background,” he said. “They’re not supposed to be in the rough and tumble of politics because the court is different. People have even argued further that invisibility is important to the court’s authority, to its mystique.”
Mauro disagrees that the mystique is even necessary.
It “seems crazy in this day and age,” Mauro said. “Any institution that relies on invisibility for its credibility is in trouble.”
“They talk about the majesty of the court, how the television coverage would take away from that,” Collins said. “I happen to think it would enhance the majesty of the court, frankly.”
He pointed to the contested presidential election between George W. Bush and Al Gore in 2000. In the midst of the legal challenges, the Florida Supreme Court allowed its hearings on the matter to be televised. Collins said he was impressed by the way that court stayed above the fray.
“When I thought of the Supreme Court of Florida, I thought, ‘Oh great, the adults are back in charge,'” he said. “I think the same would happen for the Supreme Court.”
Mauro offered a similar perspective, saying that each time the court has released audio recordings of arguments immediately after they occur — with the possible exception of the Bush v. Gore decision — public reaction has been favorable.
Although the justices agreed to release the audio recording immediately after arguments ended in that case, the opinions of individual justices were tightly guarded, Kirby said.
“They would not say,” she recalled. “They would not release who voted ‘yea.’ Apparently some voted in favor of full electronic coverage with cameras.”
That might be explained by what Graham and Collins call the justices’ intense sense of etiquette and deference.
“They have agreed among themselves that they will not permit cameras in court if any one of the nine is really against,” Graham said. ” . . . I think they give such deference to each other. I think it’s part of the glue that holds them together.”
“It’s a very, very collegial institution,” Collins said. “It’s hard to get anybody on the record, but I can imagine if there were one justice who didn’t want it, the eight others would go along.”
Mauro is not so sure one associate justice could hold veto power. In his view, the real power rests with the chief.
“My impression all the way through has been that the justices tend to defer to the chief on things like this,” he said. “So I think Roberts is the more important person.”
But Roberts seems to be following too closely in Rehnquist’s footsteps to be ready for a change, Mauro said. Graham is cautiously optimistic that Roberts eventually might usher in a different attitude.
“I just have an instinct that Roberts may change a lot of the thinking on the Supreme Court or change the tone,” Graham said.
Although Justice Kennedy told the House subcommittee in April that Congress’ attempts to legislate the issue raise concerns about the separation of powers, Graham said growing support among senators and the public for S. 1768, Sen. Arlen Specter’s bill that would permit cameras in the court, also might make a difference.
Opponents to the bill argue that Congress should respect the court’s autonomy, but Specter (R-Pa.) wrote in The Washington Post in April that he agrees “that our constitutional system is best served by giving the Supreme Court the last word, but there is no doubt that congressional procedures and authority have been severely diminished by the court. And the public needs to be able to assess these issues by shining televised light on the justices.”
Discussion of Specter’s bill, which passed the Senate Judiciary Committee in March, has brought the issue into the national discourse, Graham said. Although he predicted the bill won’t pass, he said it might already be a success.
“It does seem to me that Congress, after having rattled its saber, will back away and let the Supreme Court deal with the issue,” Graham said. The justices wouldn’t want their mystique to turn into an aura of irrelevance, he said.
“They may start to look at themselves and say, ‘Wait a minute. We don’t want a mind set to begin to develop in the public that we are old and arrogant and out of touch.'”
Mauro agreed that Congress’ greatest influence might be indirect.
“The fact that Congress keeps talking about it and getting close to passing the law on this will sort of be a wake-up call for the justices, and it will force them to think about it more,” he said. “So maybe in an indirect way, that’s how Congress may influence the court.”
All four said they don’t expect to see oral arguments on television any time soon.
“I used to say before the end of the 20th century, it was going to happen,” Mauro said. “I certainly was proven wrong.”
And now?
“I’d like to see it in my lifetime, and I’m 55,” he said, pausing. “I don’t know. I’m not wildly optimistic.”