Should the Supreme Court permit live audio and video coverage?

To follow is an excerpt from the CQ Researcher issue "Cameras in the Courtroom" by Kenneth Jost on January 14, 2011

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Retired justice Sandra Day O'Connor, the first woman to serve on the Supreme Court, was back in the courtroom last fall and liked what she saw. “It was absolutely incredible,” O'Connor recalled during a Dec. 13 program at the John F. Kennedy Library in Boston. Three women on the bench: one on the far right, one toward the middle, one on the far left. “I just think that the image that Americans overall have of the court has to change a little bit when they look up there and see what I saw,” O'Connor said.

Moderator Linda Greenhouse quickly noted that the sight was not as accessible as O'Connor suggested. “Not that many people actually get the chance to see” the Supreme Court in action, said Greenhouse, The New York Times' former correspondent at the court and now journalist in residence at Yale Law School in New Haven, Conn. [Footnote 11]

In fact, except for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.

Camera-access advocates have been making their case over the past decade in large part by emphasizing the public's limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.

The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.

The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices' personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”

Critics and skeptics of TV coverage of the court echo those concerns. “I do not see a good case for cameras in the courtroom and think it will inflict some real costs,” says Edward Whelan, president of the Ethics and Public Policy Center, a conservative think tank in Washington, and a former Scalia law clerk. Jonathan Adler, a conservative law professor at Case Western Reserve University in Cleveland, agrees, though with some ambivalence. “I understand what they're afraid of,” says Adler. “Their fears may be completely overstated, but I understand them.”

The media organizations and other advocacy groups in favor of camera access discount the fears that cameras would affect either the justices or the lawyers. In particular, they say fears of grandstanding by lawyers will not materialize. “Oral advocates are going to get up there and do their best, and so are the justices,” says RTDNA counsel Kirby.

C-SPAN counsel Collins says the cable network's experience with coverage of other appellate courts shows that lawyers do not play to the cameras, as opponents fear. “They don't, and it's very simple why they don't,” says Collins. “The only person who's going to determine the rights of their client are the judges. So they play to the judges. They do it respectfully and within the rule of law.”

Whelan disagrees. “No one behaves exactly the same way when a camera is on him,” he says. “It adds an additional element. It is not at all clear that it's a desirable element.”

C-SPAN, supported by other media organizations, stepped up its requests for TV access to the court in advance of the two cases that resolved the Bush v. Gore presidential election contest in 2000. By letter, the late Chief Justice William H. Rehnquist responded that “a majority” of the justices remained opposed to TV cameras. But the court did take the then-unprecedented step of releasing audio tapes of arguments in the two cases immediately after the conclusion of each session.

The court followed that procedure in a dozen or so cases over the next decade. The new practice, adopted at the start of the current term in October, makes the recordings of all arguments available, but only at the end of the week. “They wanted to get out of the business of making a case-by-case decision,” Collins says.

Prospects for congressional legislation may be dim after the defeat of Pennsylvania Sen. Arlen Specter, the Republican-turned-Democrat who sponsored legislation calling for camera coverage and closely questioned Supreme Court nominees on the issue during confirmation hearings. In any event, it is unclear whether Congress has the power to require the court to let cameras in.

Collins says the court itself will have to change before cameras are allowed. “I think the court will be televised eventually, but it will be a result of generational change,” he says. “There have to be enough justices who've had broad experience with video in their lives to be comfortable with it for them to open up.”

The Issues:
* Has television coverage of state courts been a success?
* Should federal courts permit television coverage of trials, including criminal cases?
* Should the Supreme Court permit live audio and video coverage?

For more information on the CQ Researcher report on "Cameras in the Courtroom" [subscription required] or purchase the PDF.

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Footnotes

[11] An excerpt from the Dec. 13, 2010, program, “A Conversation With Justices Sandra Day O'Connor and David Souter,” was posted on You Tube: www.youtube.com/watch?v=e4D9RTCOD9E.