When We Will Get a Look Inside?

The case for filming the Supreme Court


(Steve Chapman is on vacation. This column originally ran in November 2005.)

Anyone who's seen the film Fantastic Four has wondered what it would be like to have the supernatural power of Jessica Alba's character to become invisible. At least one person actually knows the answer: Chief Justice John Roberts.

Back in September 2005, he was on national TV for hours on end, testifying before the Senate Judiciary Committee. Now, he's vanished from sight. Unless you make a trip to Washington and attend an oral argument, you may never get a glimpse of Roberts doing the job the nation has entrusted to him.

So I hope you caught Samuel Alito Jr. when he appeared before that same committee for his confirmation hearings in January 2006. It may have been your sole opportunity to watch him in action, addressing the momentous legal issues of our time. After his confirmation, Alito also vanished behind the impenetrable walls of the court.

This is a weird country: We can watch Paris Hilton having sex, but we can't see our justices deliberating.

Unless, of course, the court admits cameras, something it has so far stoutly resisted. That could happen one of two ways: a decision by the court or a decision by Congress. And there are flickers of hope on both fronts.

The first came when Roberts, under questioning by senators, said he was willing to consider allowing live TV and radio coverage of Supreme Court sessions. That was a change from the attitude of his predecessor, William Rehnquist, who barred the doors for fear that public visibility would harm the court's "mystique and moral authority."

The second is a bill introduced by Senate Judiciary Committee ranking member Arlen Specter, R-Pa., to require the court to open up to cameras. Co-sponsor Sen. Charles Schumer, D-N.Y, has said, "I think this is the year to make this law."

It's a basic axiom of democracy that government institutions should be subject to the scrutiny of the citizenry. So our courts are open to anyone who wants to see what goes on inside. As the Supreme Court once said, "A trial is a public event. What transpires in the courtroom is public property."

But when it comes to the Supreme Court itself, the average American generally can't claim that property—since attending in person is the only way to exercise the right of access. Given the size of the viewers' gallery, only a tiny fraction of the 296 million Americans can do that on any particular day. For most people, the court is only slightly more accessible than the vaults at Fort Knox.

Why this should be so is a mystery. It's not as though we lack experience with TV cameras in the courtroom. All 50 states now allow them to cover at least some judicial proceedings, and in the early 1990s, some federal courts tried them in a three-year pilot project. Afterward, a study by the Federal Judicial Center reported that the presence of cameras "did not disrupt court proceedings, affect participants in the proceedings, or interfere with the administration of justice."

There are plausible fears that the electronic eye could intimidate witnesses or jurors, and thus get in the way of a fair trial. Those fears, however, apply only at the trial level. In the Supreme Court, there are no witnesses or jurors—only attorneys making arguments and justices interrogating them.

Some judges fear the public's eyeballs would be seared by gazing directly upon these interactions. As federal appeals court Judge Edward Becker said in 2000, "The oral argument process is very intense, rigorous… The problem with televising arguments is that they can be edited, and if the public sees me giving a rough time to one lawyer, they think I'm biased."

But that same alleged peril exists with the audio tapes that the Supreme Court sometimes makes available immediately after hearing important cases. If any justice has gotten a reputation for bias from that exposure—or a reputation for anything—it's news to me.

What TV coverage would do is give citizens a chance to personally observe one of their most important government institutions and, in the process, gain a richer understanding of how it works. That approach works very well when it comes to confirmation hearings for Supreme Court nominees. I'm betting it would work just as well in the post-confirmation phase.