While Chief Justice John Roberts may assert with considerable “justice” that the Supreme Court of the United States is the most transparent part of government, the fact remains that hearings are not televised on CSPAN nor on a .gov website.
This week, the U.S. Senate Judiciary Committee voted 11-7 to send a short bill on to the full Senate that would amend the U.S. Code to allow Supreme Court hearings to be broadcast live on national TV.
“Four days ago more than 111 million Americans watched the Super Bowl. No one would have tolerated that game being recorded and broadcast days later or its plays being transcribed and released at the end of the week. The outcome of the Supreme Court argument next month goes to the heart of our democracy and will affect Americans more than the outcome of any football game. Now is the time for the Supreme Court’s public proceedings to become truly accessible to the millions of Americans who will be affected by its rulings.”-Senator Patrick Leahy
Video of the Judiciary Committee session is embedded below, via C-SPAN:
I agree with that these hearings should be made available to the American people through broadcast television. The full Senate and House might consider going one step further, however, and amend the bill to add a provision for a livestream to the Internet.
The Supreme Court did get a new look — and online address — at SupremeCourt.gov in 2010. SupremeCourt.gov does provide access to opinions, orders, docket, Court calendars, transcripts, schedules, rules, visitors’ guides, case-handling guides, press releases and other general information.
The upcoming hearings about the healthcare reform law could make this the year when the judicial branch gets upgraded to be a real-time component of the public sphere of 2012. While oyez.org is a tremendous resource for those interested in hearing audio recordings of hearings, citizens deserve better.
In the age of the Internet, public means online.
UPDATE: An alert — and informed — reader on Facebook commented that Justices Scalia and Breyer weighed in against televising hearings:
“I was initially in favor of televising,” said Scalia, appointed by Ronald Reagan in 1986. “But the longer I’ve been there, the less good idea I think it is. … If I really thought the American people would get educated, I’d be all for it.” But, Scalia insisted, people would see only brief, illusory exchanges. “For every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 people who would see nothing but a 30-second takeout … which I guarantee you would not be representative of what we do.”
Video of their testimony before the Senate is embedded below:
C-SPAN has a dedicated page on “Cameras in the Court” with the positions of each Supreme Court Justice.
[Update: Per Adam Liptak’s report for the New York Times, that page is now behind, with respect to Justices Kagan and Sotomayor’s stance. (They’ve expressed concerns after joining the high court.) I’ve updated their quotes below.]
Here are their most recent comments, per that page:
Justice Elana Kagan:
“I have a few worries, including that people might play to the camera. Sometimes you see that when you watch Congressional hearings.” – Remarks to the the University of Michigan Law School, September 7, 2012
Justice Clarence Thomas:
“It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.” – Testimony before a House Appropriations subcommittee, April 4, 2006
Justice Sonia Sotomayor
“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing … They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.” – interview with Charlie Rose, February 6, 2013
Justice Anthony Kennedy
“…But I don’t think it’s in the best interest of our institution…Our dynamic works. The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite. Please don’t introduce that insidious dynamic into what is now a collegial court. Our court works…We teach, by having no cameras, that we are different. We are judged by what we write. WE are judged over a much longer term. We’re not judged by what we say. But, all in all, I think it would destroy a dynamic that is now really quite a splendid one and I don’t think we should take that chance.” – Appearance before the House Appropriations Subcommittee, March 8, 2007
Justice Ruth Bader Ginsburg
“I think what bothers many people, at least me, on the other side, is that if it were in the Supreme Court, I think it would become a symbol for every court, and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, [sic] I don’t want them thinking how they look to their neighbors…And I do think about the O.J. Simpson case. And I think I’m not certain I would vote in favor of having it in every criminal trial in the country. And then I also think a problem in the appellate court is that when we decide something, it’s decided for millions of people. Of the millions of people who will be affected, only two or three are actually there in the form of parties… A decision of this issue, this kind of issue, which carries with it threats to that institution as well as benefits, should be decided after really pretty serious research and study, and not decided on the basis of something that happens to strike somebody two minutes in a conversation. And that goes, by the way, for me as well as for everybody else.- American Bar Association Rule of Law Symposium Panel on The Role of the Judiciary, November 10, 2005
Justice Stephen Breyer:
“I think there are good reasons for it and good reasons against it. The best reason against it is the problem that we could become a symbol since we are the Supreme Court, and if it was in our court, it would be in every court in the country, criminal cases included…When you have television in some, not all, criminal cases, there are risks. The risks are that the witness is hesitant to say exactly what he or she thinks because he knows the neighbors are watching. The risk might be with some jurors that they are afraid that they will be identified on television and thus could become the victims of a crime. There are risks involving what the lawyer might or might not be thinking…Is he influenced by that television when he decides what evidence to present? So what you have in me and the other judges, is a conservative reaction, with a small “c.” We didn’t create the Supreme Court…But we are trustees for that reputation, a reputation of great importance so that government will work fairly in America…And not one of us wants to take a step that could undermine the courts as an institution.”
“…I hope eventually the answer will become clear, that either those who are concerned about the negative effects are shown wrong, or they’re shown right. But at the moment I think it’s quite uncertain what the answer is.” – Interview on C-SPAN’s Q & A, December 4, 2005
Justice Samuel Alito
“I had the opportunity to deal with this issue actually in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it…The issue is a little different in the Supreme Court. It would be presumptuous for me to talk about it right now, particularly since at least one of the justices have said that a television camera would make its way into the Supreme Court over his dead body. I will keep an open mind despite the decision I took in the third circuit.” – Confirmation Hearing, January 11, 2006
Chief Justice John Roberts:
“There’s a concern (among justices) about the impact of television on the functioning of the institution. We’re going to be very careful before we do anything that might have an adverse impact.”
– Remarks at the Ninth U.S. Circuit Court of Appeals’ annual conference, July 13, 2006
“Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of. But I don’t have a set view on that. I do think it’s something that I would want to listen to the views of – if I were confirmed – to my colleagues.”
– Confirmation Hearing, September 14, 2005
This post has been edited and updated since its initial publication, including additional content, links and quotes.