Supreme Court

SCOTUS Still Won't Allow TV Cameras—But What About Same-Day Audio

The Court has released same-day audio of oral arguments before. Why can't it be a regular practice?

|The Volokh Conspiracy |

Cameras will not come to the Supreme Court anytime soon. Testifying before the House Appropriations Subcommittee on Financial Services and General Government, Justices Elena Kagan and Samuel Alito made clear that there is little interest in allowing video recording of the Supreme Court's proceedings, let alone live broadcast.

While televising oral arguments might "allow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers, all of us together," Justice Kagan observed, it could also alter the conduct of oral arguments in ways that could undermine the Court's work. "If seeing [the court] came at the expense of the way the institution functioned that would be a very bad bargain. And I do worry that cameras might come at that expense," she added.

The justices' reluctance to perform their work in front of TV cameras is understandable, but the refusal to allow greater access and transparency to the Court's work is not. Fortunately, there are steps the Court could take short of televising arguments.

Oral arguments are recorded, and audio recordings are released at the end of each week of arguments. There is no reason for this delay. To increase transparency and mollify those seeking argument video, the Court should begin releasing audio recordings of oral argument the same day such arguments occur.

Transcripts are released daily, but the written transcriptions often fail to capture the flavor of the argument and, as initially released, are prone to typos or errors. They are useful for researchers, but lack the value of an audio recording, both for journalists covering the court as well as those who want to truly understand how the arguments transpired.

One reason sometimes offered for not televising court proceedings is that the prospect of live broadcast tempts activists and others to disrupt court proceedings to gain publicity or attract attention to a particular cause. This is an argument against live broadcast, however, not an argument against same-day release. An hour or two delay offers ample time to excise any such disruptions, thereby reducing the incentive to interrupt court proceedings, without meaningfully limiting public access to the Court's proceedings.

Some justices fear that making the court's arguments more accessible would affect the manner in which cases are presented, and perhaps the manner in which justices ask questions. To whatever degree such concerns are justified, the experience with oral argument audio should allay such concerns.

Audio recording has existed for decades without any apparent effect on the quality or sincerity of the arguments made. More importantly, the Court has occasionally authorized the same-day release of oral argument audio for cases of extreme public interest, such as Trump v. Hawaii (the "travel ban" case) and Obergefell v. Hodges (same-sex marriage), and such releases have occurred without a hitch. If releasing same-day audio for such highly charged cases did not corrupt the Court's work, it is hard to see a problem in same-day release of cases about the application of the federal rules of civil procedure, preemption of state tort remedies, or the interstices of obscure federal statutes.

Journalists, researchers, students and others would like greater access to the Supreme Court's proceedings, without having to travel to DC or line-up outside of One First Street. Whether or not televising arguments is a good way to meet such demands, there is little reason for the Court not to release audio of arguments and opinion hand-downs on the same day that they occur. It's a simple step that should command unanimous agreement.

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21 responses to “SCOTUS Still Won't Allow TV Cameras—But What About Same-Day Audio

  1. I would much rather have access to the clerks’ drafts and conversations, as it appears this is where the actual decisions are made.

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  2. Or the best argument against either video or audio of Supreme Court proceedings – they are not where the real work of the SCOTUS is done. By publishing those proceedings, they dilute the real communications about what the court thinks and how it decides – the published opinions themselves.

    1. As a researcher, there is a lot of nuance that finds its way into the oral arguments that is not captured in the published opinion, as well as (one of the Court’s favorite things to construct) hypothetical scenarios that gives a fuller picture of the intent behind a published opinion.

      While I agree that video cameras are bad based on personal experience about how small government meetings go vastly awry when cameras are installed, no audio would be a loss.

    2. That’s not a good argument. That’s like arguing we shouldn’t televise trials because the real work is done in the jury deliberations. Or that we shouldn’t televise Congress because we can just read the bills they vote on.

      The point is to show the process as a civic exercise. Remember, these are public proceedings anyway. The Court doesn’t dare bar the public from attending arguments.

      Personally, I think we should just go ahead and pass a constitutional amendment requiring televised oral arguments and put an end to this once and for all.

      1. We shouldn’t televise trials either. Anytime people are paying attention, it’s been a disaster.

  3. My main interest in recordings, whether audio or video, is to cut short biased descriptions of what happened. Too many commentators like to claim they heard pauses or gasps or whatnot indicators of horrible behavior.

  4. With all of the 24/7 instant social media, fake news, and editing software, there is no way that I let cameras into my courtroom if I’m a judge.

  5. “Justices Elena Kagan and Samuel Alito made clear that there is little interest in allowing video recording of the Supreme Court’s proceedings”

    They are just trying to hide Ginsburg’s absence.

    1. Well….maybe just her snoozing or something.

    2. We all know the RBG passed away a few years ago and a body double is currently standing is for her.

    3. Are any of you serious about this? You think Alito would let that fly?

      1. It’s Felicity Jones. Alito’s OK with it.

      2. Is there video of her on the bench hearing arguments since her hospitalization?

        I am surprised you fall for official narratives.

        1. Is there video of her on the bench

          Almost, Bob. Almost!

  6. So the Revolution Will Not Be Televised???

    The Revolution Will Be Released Same Day Audio isn’t nearly as catchy….

  7. I find the court’s rationale (re allowing proceedings to be videoed) unpersuasive.

    The Sup. Ct makes its own rules. So, why not try it for a year. If the 9 members feel it has had a negative impact, then go back to the current rule. Heck, if they don’t like it after 2 months; they can easily go back to the current rule.

    The Sup Ct–more than, literally!!!, any other organization in the United States–can implement rules and procedures fast and effortlessly. Therefore I call B.S. on its refusal to try greater transparency.

  8. Rossami I don’t follow your notation about “diluting”. The practice would simply add another facet to the civic exercise, as Dilan Esper commented. Can anyone give a plausible reason why I can walk in with a camera in state superior court for a murder trial, but only allowed to watch cartoon drawings on TV for Whitey Bulger?

  9. The Court releases transcripts of argument online the same day a case is heard. It releases audio of oral arguments at the end of each week, also online. Orders are released and posted online as they occur. And, most importantly, written opinions elaborating the underlying rationale are released online the same day a decision is announced. I certainly don’t see Members of Congress or the Executive publishing opinions in which they articulate their reasoning for the decisions they make. Instead they issue repetitive and empty sound bites short enough for media outlets to replay.

    I consider the Court to be the most transparent branch as it is the only one where the members put before the whole public their train of thought. However, this requires taking the time to sit and actually read what can be in excess of 100 pages of opinions in a case. It’s not “transparency” people want, it’s that having to read is too much effort and therefore doesn’t count as transparency.

    The outcome of TVs in the court would be partisan media outlets constantly replaying 30 second clips, out of context, to outrage their audience. People aren’t watching congressional debates on Cspan, they’re seeing the edited clips that CNN and Fox News have chosen to focus on. Want to know about the Court? Read.

  10. Fair enough Cat. Thank you.

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