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.

COPYRIGHT 2005 CREATORS SYNDICATE, INC.

Comments

[thoreau]

I'm fine with cameras in the Supreme Court, but I have mixed feelings on what the alcohol policy should be.

On the one hand, I think it would be awesome to see some drunk Supreme Court Justices on camera. On the other hand, if they start acting like drunk guys at football games, and take off their shirts to reveal that their chests were painted with the logos of their favorite teams, well, that could get troublesome.

I propose a 2 drink minimum, 4 drink cap. That way we get them buzzed and loose, but not crazy.

[John]

The only harm I could see from allowing cameras into the SC would be speakers posturing more for the cameras than the court. That, and any added attention to the court might inspire politicians to tamper with it with age limits and such. Otherwise, the benefit of actually hearing real arguments could raise the discourse in the media. Just imagine if O'Reilly had to cite precedent in an argument.

[x,y]

Oral argument is already largely irrelevant. I don't see how adding cameras -- and more posturing -- would change the situation at all. Cases are won and lost on the briefs.

[Warren]

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.

I don't think so. As noted, oral argument is just ceremonial. The one benefit that might come of it, people would see 'lifetime appointments' results in doddering, addle minded, geezers more cognitively impaired than the parent they had to put in a home last year, sitting in judgment of us all.

Appointments to the court should be for a single twelve year term

[Lamar]

The Supreme Court does its work on paper. No need for cameras in there.

[Pro Libertate]

I oppose the broadcast of oral arguments. That would just result in further political grandstanding, and the public airing of oral arguments won't do any good, anyway. It's not like this stuff isn't already a matter of public record.

Now taping what happens behind the scenes would be instructive. I wonder how many justices over the years were merely figureheads for their clerks?

[Lamar]

"Now taping what happens behind the scenes would be instructive."

You mean like seeing Ginsburg nakie?

[Pro Libertate]

Ugh--no.

[ChrisO]

As someone who has sat through numerous Supreme Court oral arguments (and participated in the briefing of many more), I can say with certainty that those were some of the most boring moments of my life.

Supreme Court cases almost all revolve around highly technical points of law that would interest only a handful of law geeks. They rarely discuss the policy issues that the media all worked up.

One time, I had to sit through a morning argument to be in the gallery for an afternoon argument in a case in which I had participated in the briefing. The morning argument was some ungodly boring and complicated tax case, and I would have had little less understanding of the proceedings had the lawyers argued in Aramaic. The arguments are designed for the Justices and the lawyers to address no more than a couple of legal points of contention, rather than the case as a whole. There is no real background given, since all of the participants have already read the briefs. A viewer who hasn't read the briefs would have almost no clue about what's going on.

That's not to say that the arguments shouldn't be televised, just that doing so would hardly be some triumph for democracy.

[ChrisO]

Oh, and by the way, it's not entirely true that oral argument is now mere ceremony. A few of the current Justices believe that (Thomas, especially), but most of them find the argument useful for crunching through uncertain issues. Putting the lawyer on the spot to defend his/her position can be useful in "smoking out the truth", as it were. The saying among lawyers is that you cannot win a case at oral argument, but you can certainly lose it.

[thoreau]

Lamar-

Hence the need for careful alcohol regulations.

[badIdea]

Cameras in the supreme court are a bad idea... the minute this happens there will be calls to popularly elect the justices and we will have to welcome a third legislative branch.

[Jake Boone]

Remember what happened when the bad guys opened the Ark of the Covenant in Raiders of the Lost Ark? That's what happens if you, a mere mortal, dare to gaze upon the deliberations of the Supreme Court.

[Vermont Gun Owner]

I was under the impression the Supreme Court already is a legislative branch, just with fancy robes and a bench and a hammer-thingy.

[Urkobold?]

VERMONT GUN OWNER,

HAMMER-THINGY? ARE YOU SUGGESTING THAT THE SUPREME COURT HAS SEIZED AND IS NOW WIELDING MJ?LNIR? A FEARSOME DEVELOPMENT, IF TRUE. ONE THAT WILL SHAKE THE SYSTEM OF CHECKS AND BALANCES TO ITS VERY CORE.

[Fred]

With Roberts in the hospital, the new televised proceedings can be called "Search and Seizure" (*rimshot*)

[JamesP]

If we broadcast the courts then how are the fixes going to be able to be hidden then?

We would all be able to see the incompetent Judges and impeach them one by one until we have a "fair" system. I know it's the best around, but there is a lot of improvement needed.

Interesting that The Specter (R-PA) is on this as he is the Architect of the 3rd Circuit (PA)- Alito's home base. What game is he playing now? Maybe we can see more European Law applied again

[atlas76]

The Supreme Court is an important, ANTI-democratic check on our democratic system. The constitution that the Court interprets exists largely to contain the excesses of the federal government. Every time the Court strikes down a law based on the Bill of Rights, it acts against democracy and in support of the individual. I think a press to make the Court more accessible to the public would be a step in the wrong direction. The judges should not feel that they have to answer to the public. I would also hate to see certain judges attempt to gain disproportionate power on the court by pandering to the public.