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Lights, Camera, and ????–––Cameras at the Supreme Court

- January 28, 2008

Senators Arlen Specter (R-PA), John Cornyn (R-TX), Dick Durbin (D-IL), Russ Feingold (D-WI), Charles Grassley (R-IA), and Chuck Schumer (D-NY) are cosponsoring a bill to bring cameras to the Supreme Court. The bill would require the Supreme Court to televise all of its open sessions, unless the Court decides by majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved. The bill was recently approved by the Senate Judiciary Committee. Given that the bill attracts sponsors from left, center, and right of the ideological spectrum, it is likely that Congress will eventually attempt to mandate cameras in the Court.

During his confirmation hearings, John Roberts committed to exploring this issue more thoroughly and Samuel Alito reminded the Senate Judiciary committee during his confirmation hearings that he had voted to allow televised coverage when he served on the Court of Appeals for the Third Circuit. Allowing cameras in the courtroom would be consistent with recent steps towards opening up the Court. It would also be consistent with the pleas of political scientists (here), journalists (here), and lawyers (here) for greater transparency. If the court has warts, it has been argued, the public should see them.

Recently, Chief Justice Roberts expressed a reluctance to allow cameras in the courtroom. He explained at a conference for the Ninth Circuit, “we don’t have oral arguments to show the public how we function. We have them to learn about a particular case in a particular way.” While Roberts has become skeptical of the televising of the Court, Justices David Souter, Stephen Breyer, Anthony Kennedy, Antonio Scalia and Clarence Thomas have publicly opposed televised coverage of court proceedings. Although I am skeptical that the television of oral arguments will deprive justices of necessary information, it is conceivable that the televising of oral arguments could create warts, rather than simply showcasing, existing ones.

In her path-breaking experiments comparing televised “civilized” and “uncivilized” exchange of views that were discussed previously on this blog, Diana Mutz demonstrates that uncivil exchanges generate more attention from viewers, stronger emotional reactions, and less legitimacy for oppositional views. Similarly, studies have found that public exposure to the messiness of the legislative process undermines public confidence in Congress. We like sausage, but we don’t like to see it made.
It seems likely that televising proceedings of the Supreme Court could entice lawyers to make less civilized arguments for the sake of securing the attention and sympathy of the public. Televising the Court could undermine the Court’s legitimacy and damage the democratic process.

Of course, there would be a silver lining if Court opened its oral arguments to T.V. Televised oral arguments would inevitably improve my judicial process lectures. However, even if Congress were to mandate television cameras, it seems unlikely that the justices would let the new law stand. Most likely, they would declare such a bill unconstitutional, and keep the cameras at a safe distance out on Capitol Hill.

Perhaps the most interesting aspect of the debate over the bill stems from Senator Specter’s reaction to the Court’s resistance to having Congress interfere with its own procedures. During hearings on the bill, Justice Kennedy told the panel that televised proceedings would “change our collegial dynamic. And we hope that this respect that separation of powers and checks and balances implies would persuade you to accept our judgment in this regard.”

A December 6th story in CQ Today noted that Senator Specter responded by noting “we have substantial authority. . . . Congress decides how many justices there will be on the Supreme Court. Congress has also established time limits that the Supreme Court and the other federal courts have to observe.”

In short, the debate over the bill is as much about the authority of Congress as it is about the wisdom of allowing television in the Court room. Specter rejected the separation-of-powers argument by noting that he majority opinion in United States v. Morrison critiqued Congress’ “method of reasoning.”

What does a 2000 case about the Violence Against Women have to do with the televising of Supreme Court hearings? Specter summarized it all when he noted: “I can’t imagine a higher insult than questioning our ‘method of reasoning’ as if theirs is higher,” Specter said. In other words, we should mandate television because you think you are better.

It makes perfect sense to me. Not.