Truly, what are we doing here?
On Thursday, the Supreme Court live-streamed oral argument audio of the Trump/Colorado ballot case. Where’s the video?
The Supreme Court’s history of secrecy has totally warped Americans’ brains about what the public (who, by the way, funds the Court) should expect in way of transparency from the Court.
Exhibit 1, a Brian Stelter tweet ahead of the Trump/Colorado ballot case arguments on Thursday actually lauding the Court for its transparency in allowing an audio livestream of the arguments:
In Stelter’s world (and I don’t mean to pick on Stelter), the public is Oliver Twist and the gruel is access. Rather than ask for more — say video access — and risk a ladle to the head, we should just be happy we got something at all.
This is outrageous!
The Supreme Court building seats just 439 people. But not even all 439 seats are for the general public. In fact, depending on the day, as few as 50 seats are for the public. Fifty seats for 332 million people! People literally have to sleep on the ground outside in the cold to witness the Court’s proceedings.
Supreme Court Justices have over the years trotted out all sorts of reasons why they do not allow cameras in the Court and have steadfastly refused to camera access. So, Americans are stuck staring at Supreme Court senior class pictures while listening to disembodied voices:
Take Chief Justice Roberts. He’s said, “Changing something as dramatically as televising the proceedings I think would be harmful.” Remarkably, he then added, that even without cameras the Court was “the most transparent branch in government in terms of seeing us do our work and us explaining what we’re doing.”
Hogwash!
Apparently, Roberts forgot that it was the Supreme Court that held decades before him that while “people in an open society do not demand infallibility from their institutions,” “it is difficult for them to accept what they are prohibited from observing.”
Roberts’ claim, of course, ignores that the Executive Branch provides camera access to all sorts of government hearings (see, for example, the FCC) and is also subject to mandatory government records disclosure requirements under the Freedom of Information Act. (Don’t get me started on whether the public owns the Justices’ papers or whether the Justices do.)
It also ignores that C-SPAN has disseminating video of Congress for decades, beginning nearly fifty years ago in 1979. As the New York Times reported at the time, “What may become the longest running television show in history will begin at noon tomorrow.” Since then, that “television show” given us, among other things, video of this truly fascinating conversation between Paul Gosar and AOC:
Of course, Roberts is not alone in his views on cameras in the Court. His fellow Justices largely agree. Justice Thomas has said that cameras “risk of undermining the manner in which we consider the cases.” So do conflicts of interest, but that has not stopped Justice Thomas from engaging in those.
A few years ago Justice Kagan told Congress, “If seeing [the Court] came at the expense of the way the institution functioned that would be a very bad bargain. And I do worry that cameras might come at that expense.” For Justice Alito’s part, he told Congress, “We don’t want access at the expense of damaging the decision-making process.”
Counterpoint: maybe the institution needs to function differently, its public approval is underwater and at near historic lows.
And, while others have been open to the idea in confirmation hearings, their views suddenly change when they get confirmed. This should be unsurprising: power generally loathes accountability, which is exactly what cameras would provide a modicum of.
One more for good measure: retired Justice Kennedy once said that “We are a teaching institution, and we teach by not having the television there.” What does that even mean? To teach we must leave students banging on the classroom door from the hall?
I usually come to issues with very staid assessments. But these positions are incredible and should be treated as totally fantastical. They should be treated as such because they seem to imply that no one has ever let a camera in a courtroom before. But nothing is further from the truth.
While the Supreme Court has steadfastly refused to allow cameras, dozens — no hundreds — of courts in this country and around the world have welcomed cameras into their courtrooms. And, as far as I am aware, none of the myriad fears raised by the Justices have materialized on any regular basis.
On the contrary, last year, the Lord Chief Justice of the United Kingdom, the highest sitting jurist there, told an audience that “[i]n the context particularly of controversial constitutional challenges, the contemporaneous broadcasting of proceedings has been seen to enhance public understanding, support the legitimacy of the decision made by the court and the willingness of the public and politicians to accept the outcome.”
Perhaps allaying the Justices’ fears, rather than harming the institution, the Lord Chief Justice added, “When people have the whole picture they are less likely to criticise unfairly.” (And they hate to be criticized!) He added that a/v access “has improved the quality of reporting” and “helped enhance understanding . . . amongst politicians and policy makers.”
This logic is universal; it would not stop at the threshold of the U.S. Supreme Court. So, again, what are we doing here?
Indeed, federal appeals courts around the country have provided a/v access that are watched by thousands. The Ninth Circuit, the appellate court covering the western United States does so regularly on YouTube. It has more than 13,000 videos available for public view. And the public regularly views them. Controversial cases during the Trump administration saw 100,000 or more views since publication.
State courts have been providing trial and appellate a/v access for years too. In Michigan, you can pop into a courtroom from your couch! I know of no evidence that those proceedings have since devolved into vanity contests or that counsel have ever played to the cameras. At most, we’ve all gotten a lighthearted chuckle about a lawyer appearing in court with a cat filter on: “I am not a cat, judge!”
The Court also seems to forget that there are other supreme courts around the world. And, unlike the Court, high courts around the world also regularly provide a/v access or allow the media to provide it to the public. Take your pick! Australia, Canada, India, Mexico, the United Kingdom, the European Court of Human Rights, New Zealand, etc.
And, yet, the judicial system has not collapsed in those countries as a result of giving the public living room access.
As the Supreme Court of India explained, providing a/v access “effectuates the right of access to justice or right to open justice and public trial, right to know the developments of law.” It added that public access “after all, can be more than just a physical access to the courtroom rather, it is doable even ‘virtually’ in the form of live streaming of court proceedings and have the same effect.”
These experiences from jurists around the world also put to bed another favorite rejoinder from the Justices: that cameras will turn the Court into something like the floor of Congress, with lawyers grandstanding for the cameras and putting on a show rather than engaging in advocacy and an argument. This too is a straw man.
First, there is no evidence that this has become a systemic issue in those countries that already allow cameras. Again, the Court trades in hypotheticals, while those in favor of cameras trade in reality and lived experience.
Second, it ignores that a political stage is very different than a courtroom. Lawyers have clients and ethical obligations and courtrooms have rules of decorum and process. Being a showboat in the courtroom doesn’t pay dividends like it might on the floor of Congress.
I say again: truly, what are we doing here!
Supreme Court Justices can, of course, continue to engage in patently self-serving conduct when it comes to cameras and continue to say what they want about the ills of a/v access. But that does not make it so. Experience at home and around the world makes it clear: a/v access to court proceedings benefits the public and the judiciary.
No offense to Mr. Stelter but, we should stop thanking the Court for a ladle of gruel. And we should stop pretending that the pros and cons of a/v access are somehow up for debate in the year 2024. Again, experience has already settled the matter. If the Court won’t allow cameras in, Congress should force it to.
