Sunday, April 15, 2012

The Controversy Over Cameras in the Courts

The ongoing controversy about whether Supreme Court arguments should be televised has reared its head again.  In February, a bill was introduced that would require the Court to "permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court."  

The media had a lot to say about this, of course, particularly when the Affordable Care Act arguments were coming up: the Supreme Court absolutely must allow cameras: a need for transparency, the integrity of the Court, the public interest, and democracy itself are at stake in this debate, they said. In March, the Court predictably refused to allow the Affordable Care Act arguments to be televised. 

Somehow, though, I can't bring myself to be outraged.

Supreme Court arguments are already posted in audio format at the end of each week. The Affordable Care Act argument audio was posted two hours after arguments ended, due to public demand.  If that's not fast enough for you, transcripts of arguments are posted on the same day. That will also help you out if you want to know which Justice said what, so you can rabidly speculate about what the opinion is going to say. It takes months for an opinion to come out anyway, so a maximum five-day wait for the audio recording will still leave you with plenty of time to guess what answer the Court's magic 8 ball is going to give us, based on the wild hypothetical questions they pose to the advocates. 

So, what exactly are we missing here? What's being hidden from us? The Justices' facial expressions? Their body language? The commentators above basically say that audio and transcripts "aren't good enough," but other than comparing the arguments to reality TV and describing how entertaining the viewing would be (note: to most people, believe me,it would not), they don't give me much to go on. 

Now, don't get me wrong: I'm not really a fan of most of the arguments for keeping cameras out of the Court either. Slate's Dahlia Lithwick says the "standard argument" for keeping cameras out of the Court is that "mere mortals can't be exposed to all that weighty gravitas and live to tell about it," but that's an obvious straw-man. Personally, I've never heard that argument before, and I don't honestly believe that's anyone's position at all.

In contrast, this Washington Post Article makes a better (and more frequently advanced) argument that unlike Congress, whose every move the electorate can (and perhaps should) be watching, the Court is not a political branch, and cameras in the Court would have a subtle but insidious political influence that we don't want. That might be true, but I think it's pretty hard to say with a straight face that the Court isn't already massively influenced by politics. I feel confident that the Court doesn't split 5-4 in every case that's in the news because their philosophies about reading the Constitution are completely irreconcilable...but only in politically controversial cases. No, I don't think cameras would violate the independence of the Court. 

Nor am I convinced by the argument that TV coverage would allow the media to create catchy clips mischaracterizing the arguments. With the audio out there, the media can already edit and entertain to it's heart's content; I bet plenty of you have heard the clip from the Affordable Care Act arguments about whether or not Congress can require us all to eat broccoli. The point is, cameras aren't going to distort the public's impression of what's going on in the Court any further. 

The main reason to keep cameras out, as far as I can tell, is that they would be disruptive. Anyone who's ever been to a wedding, graduation, or piano recital knows that people running around with cameras can go a long way towards ruining the experience, and those events don't require the kind of concentration that oral arguments do. I've argued in court a few times now myself, and I can say that having the press there would drive me absolutely nuts. However - and this is a big "however" - that isn't, by itself, a good enough reason to keep cameras out of courts. 

So, to sum up, I don't think that the Court will be making a huge mistake if it wants to allow cameras in some day - I  don't think there's any reason to believe it would be anything more than a gigantic annoyance. But, I don't think Congress has any legitimate reason to force the Court to allow cameras either. Public access to what goes on in the Court is vital to our system of government, and if the Court tried to hide what it was doing, that would be an outrage. But that's just not what's happening here. Thanks to the internet, anyone and everyone can find out exactly what's going on within a matter of days or even hours, so I don't think we're missing anything we need to know.

Supreme Court reality TV is just not necessary, and this latest bill is just tilting at windmills.



  1. Hey, sometimes the windmills really transform into ogres! True story.

  2. (1) Yay, you read my blog!
    (2) True. And if the Court stops releasing audio and transcripts, I will probably start encouraging the charge. :-)