Put Cameras in the Supreme Court

Australia, Canada, and England all allow cameras in their high courts. So should the U.S.

In February, Lord David Neuberger, the president of the Supreme Court of the United Kingdom, addressed a conference in Northern Ireland on the topic of justice and security. Much of the speech addressed how the British judiciary deals with terrorism cases, but Lord Neuberger also emphasized the importance of broadcasting appeals court proceedings. "Unless justice is carried out publicly," Lord Neuberger said, "there is a real risk that the public will lose confidence in the justice system, and there is a real risk judicial standards will slip."

To that end, the UK Supreme Court streams all of its oral arguments live and online via Sky News. The Court also maintains its own YouTube channel, which contains the justices' explanations of their judgments. As Lord Neuberger explained, "A succession of cases has emphasized the importance of the public, and perhaps particularly the media, seeing what goes on in court, at least to the extent it is compatible with the administration of justice."

The British justices are not alone in their approach to transparency. Since the 1990s, the Supreme Court of Canada has televised all of its oral arguments on the Cable Public Affairs Channel, the northern counterpart of C-SPAN, which also maintains an online archive. Chief Justice Beverly McLachlin said in 2012 her court's "experience with television and webcasting has been positive." Justice McLachlin noted that unlike trials, which are not televised in Canada, "there is no possibility of [cameras] disrupting the decorum of the Court, nor, given the nature of debate before the Court, any real risk of sensationalisation or trivializing the hearings."

Other English-speaking appeals courts have similarly opened their proceedings up to the online world. Starting last October, the High Court of Australia makes video recordings of its hearings available after a few days delay. And while the Supreme Court of New Zealand does not maintain an online archive like its sister courts, it does approve "all applications to televise or otherwise record proceedings" unless a party to the case objects.

But perhaps no supreme court has shown a greater love of the cameras than Brazil's Supremo Tribunal Federal (STF). In 2002 the STF established its own broadcast network, TV Justica, which televises not just oral arguments but the justices' actual decision-making process. According to an account from a Brazilian law professor to University of Oregon journalism professor Kyu Ho Youm, in all cases decided on the merits, "the deliberations are held before the public and the decision is forged live on national TV."

And then there is the United States Supreme Court, which infamously bans all televised or online broadcasts of its proceedings. Retired Justice David H. Souter drew a line in the sand before a House of Representatives subcommittee in 1996, arguing "the case is so strong" against televising the Supreme Court's proceedings, "that I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."

Other justices have offered a plethora of excuses for keeping the cameras out. Justice Clarence Thomas complained in 2008 that "regular appearances on TV would mean significant changes in the way my colleagues could conduct their lives." Justice Anton Scalia fretted that most viewers would only see 30-second out-of-context soundbites on the news. And in 2007, Justice Anthony Kennedy said televising oral arguments "would destroy a dynamic that is now really quite a splendid one" among members of the Court.

Yet the experiences of Canada, the United Kingdom, and other nations suggest there's little to fear from opening oral arguments to a worldwide audience. The U.S. Supreme Court already releases audio recordings and written transcripts. So why are the justices so defiant in keeping the doors closed to video broadcasts?

One thing to keep in mind is that in the United States, unlike the United Kingdom or Canada, Supreme Court justices are subject to a highly publicized (and politicized) confirmation process. As Justice Thomas has said, his contentious 1991 hearings destroyed his personal privacy, which is why he has been adamant that his colleagues retain some degree of "anonymity" from the public. Other justices, including John Roberts and Sonia Sotomayor, have hinted they'd be open to cameras at their confirmation hearings, only to backtrack once they are confirmed for life.

Indeed, outside of confirmation hearings (and interviews with C-SPAN's Brian Lamb), the question of cameras usually comes up when the justices make their annual appearance before Congress to testify about the Court's budget. Some members, like former Pennsylvania Sen. Arlen Specter, have gone so far as to propose legislation requiring the Court to televise its proceedings. This has led the justices to regard their personal distaste for cameras as some principled stand for the separation of powers.

But the issue should not be the Supreme Court's passive-aggressive relationship with Congress, but its accountability to the public. There is little reason any American should have confidence in the Court's decisions on issues like freedom of the press and government surveillance when the justices themselves continue to hide behind closed doors. This goes beyond transparency. The Court has isolated itself from the public it is supposed to serve. When justices talk about the loss of anonymity or the impact on their "dynamic," what they're really saying is they don't want to surrender their inflated self-image of the Court as a private club.

The British and Canadian experiences have already shattered the myth that cameras compromise the quality of appellate justice. Cameras are simply no big deal. As Lord Jonathan Mance, one of Lord Neuberger's colleagues on the United Kingdom's Supreme Court, told the Guardian in 2011, "I don't notice the cameras, I don't notice that I'm being filmed and I don't think it has any effect on judges' behavior."