Federal Courts and Nominations

New TV ad urges high court to allow cameras

By Bill Mears


A new television ad urges what the U.S. Supreme Court has been loathing for decades to allow: cameras in its marble-walled courtroom.


Eleven media and public transparency groups released the ad Tuesday in the Washington, D.C. area and some cable television outlets, saying “It’s time for a more open judiciary.”


The Coalition for Court Transparency hopes to persuade the justices to open themselves to a larger audience in its public sessions, where oral arguments are held, and opinions are read from the bench.


In an open letter to Chief Justice John Roberts, the groups say, “Additional exposure to the high quality of the debates that takes place daily before the Supreme Court can only enhance the Court’s stature and the public’s knowledge, understanding and esteem for the Court.”


The coalition complains that currently “only a privileged few” can watch the oral arguments, which are scheduled to resume next week after a month long recess.


Among the groups sponsoring the ads are the American Society of News Editors, Constitutional Accountability Center, Liberty Coalition, and OpenTheGovernment.org.


They created an online petition at openscotus.com to collect signatures from the public.


The U.S. judiciary gives each courthouse a good deal of discretion to set its own policies on public access, and the nine justices appear unenthusiastic toward having their comments on the bench televised.


Two federal appeals courts in New York and San Francisco allow cameras for selected oral arguments. Most other federal courts, including the U.S. Supreme Court, have banned photographs and video.


Parts of the Supreme Court’s building on Capitol Hill are open to the public and press, but no individual recording devices are allowed. Reporters must rely on their own notes to cover oral arguments, along with sketch artists to capture a visual image.


The biggest concerns raised by the justices are that having cameras will upset the personal dynamic between them that make oral arguments so unique and useful to their later deliberations and opinion-writing.


“Argument” is something of a misnomer. The sessions are essentially question-and-answer, with the justices separately pressing lawyers standing at a lectern to justify their positions. Some talk more at the hour-long arguments than others; some crack jokes and pepper their remarks with pop culture and political references; others are more serious and direct. Justice Clarence Thomas has not spoken at argument in years, but does read from the bench those rulings he has authored.


Most of them– past and present– have been opposed to cameras, while denying they operate in “secret.” Justice Antonin Scalia and the now-retired David Souter have been particularly outspoken. Souter told a congressional panel in 1996 that cameras in the high court would come “over my dead body.”


Scalia has said he worried the media would only air tiny snippets of video from a detailed case being argued, thereby giving a distorted impression of what the court does.


“It’s news entertainment, and whatever, and they (the media) want ‘man bites dog’ stories,” he has said. “They don’t want people to watch what the Supreme Court does over the course of a whole hour argument.”


Even justices who expressed some support during their Senate confirmation hearings are now not so sure. Justice Elena Kagan last week told a public audience, “As I’ve served on the court I’ve come to see more than I once did, the reasons that cameras may not be such a good idea.”


Just after taking the bench Kagan was more open to the idea, saying in 2011 “If everybody could see this, it would make people feel so good about this branch of government.”


Kagan was in New York honoring her colleague Justice Ruth Bader Ginsburg, who also said the public might be misled by the impression oral arguments were all the court did with cases.


“The hard work is done back in our chambers,” said the court’s oldest member.


Members of Congress– who opened their chambers to cameras in the 1980s– have also urged the high court to do the same, some introducing bills authorizing the money to pay for the installation of the electronic equipment. The Cameras in the Courtroom Act of 2011 would have gone farther, requiring television coverage of all open sessions at the Supreme Court. The legislation has stalled, but if passed may set up a constitutional showdown over separation of powers between the branches of government.


The federal judiciary in 2011 launched a pilot program to introduce cameras in 14 selected district courts around the country. The limited experiment is set to end in 2015.


The C-Span cable network, which televises every congressional floor session as well as many committee hearings, has led its own public campaign to bring cameras to 1 First Street.


“Please, senator, don’t introduce into the dynamic that I have with my colleagues the insidious temptation to think one of my colleagues is trying to get a sound bite for television,” Justice Anthony Kennedy told lawmakers in 2007. “We don’t want that. Please don’t introduce this into our intercollegial deliberations.”


Justice Stephen Breyer said at the time he worried appeals heard by justices would focus only on the “personal stories” of those at the center of oral arguments, and not on the larger legal issues that could affect “millions of people.”


“A number of people would want to make us part of the American entertainment network,” added Kennedy.


Breyer– who may be the one current justice most open to the idea– urged caution and careful study on the issue by what he called “neutral” observers, meaning non-judges and reporters.


Audio of that week’s arguments are now posted Fridays on the Supreme Court’s website, at: supremecourt.gov/oral_arguments/argument_audio. It may be the easiest way to sample the flavor of public session: only about 330 courtroom seats are available to the public and only on a first-come, first-seated basis.


A little-known fact about the high court is that it has been taping its arguments since 1955, initially in secret. Until three years ago, the audio from one term was not available until the beginning of the subsequent term, a wait of up to a year. And for decades, the only way to hear the reel-to-reel tapes was to go a National Archives and Records Administration annex in Maryland in person and listen on site. Typically only scholars and researchers were allowed access.


There are only two photographs in existence of the court actually in session – and those cameras were smuggled in separately by spectators in the 1930s.

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