A Thought Experiment: Allow Cameras in the Supreme Court, But Only Admit People from the Public from a Lottery

At this point, I think the protesters are the biggest risk to adding cameras in the Court.

|The Volokh Conspiracy |

The Supreme Court has now been live-streaming the oral argument of cases for several months. At the outset, I would listen to every case, whether or not I was interested in it. I'll admit, now my interest has waned. I will tune into a case that I have some interest in. Or more likely, I'l wait till the transcript comes out. Old habits die hard.

Fortunately, this natural experiment, which was induced by the pandemic, has dispelled certain myths. First, there was a longstanding concern that the news media would splice up soundbites from the arguments in a misleading way. I don't think this has happened–even for high profile cases involving the President's tax returns. Second, there was a longstanding concern that the attorney would grandstand. We haven't seen this either. Third, there was a longstanding concern that the Justices would grandstand. Nope.

At some point, the Justices will be able to resume in-person meetings. If I had to guess, the Supreme Court chamber will be empty. Only the Justices, the advocates, and perhaps some members of the press would be allowed into the session. At that point, I hope the Court continues the natural experiment, and allows live-streaming of the audio. Given an empty chamber, there is no risk of disruption. Indeed, I think the risk of disruption is the most potent objection to placing cameras in the Court.

For many reasons, I enjoyed watching Judge Barrett's confirmation hearing. One unexpected plus: there were no disruptions. Watching the Kavanaugh hearings was excruciating. Every few moments, a protestor popped up and caused a disruption. It took a few moments to remove that protestor. Then another protestor popped up. And so on. The process was awful. Judge Barrett's hearing was something of natural experiment. Due to the COVID-19 protocols, there were no spectators allowed from the public. Yet, the public had full gavel-to-gavel access to the proceedings. Recall there was a protestor who snuck into the Supreme Court a few years ago. The Court would be hesitant to add cameras in light of that experience.

But what if the pandemic has shined the light on a potential solution? What if the Supreme Court no longer admits people off the street into oral arguments? What if the general public can register for tickets in advance? And the Court could hold a lottery (along the lines I discussed here)? I think this random approach would make it very difficult for protestors to sneak into an argument and cause a disruption. Also, a lottery would eliminate the perverse incentives for paid-line waiters, and line-cutters.

I think this sort of internal change could grease the skids for cameras in the Court.

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  1. I used to think that putting cameras into SCOTUS was the right thing to do. I felt it would help us, as citizens, understand how and why SCOTUS rules a particular way on a case. I have changed my mind. Precisely because of the disruptions that would occur, and there is absolutely no debate that there will disruptive protestors when there are cases of controversy before SCOTUS. No thanks.

    Livestream audio is as far as we want to go here, IMO. I also think that SCOTUS needs to get back into chambers. We know how to stay safe: maintain distance, masks, frequent handwashing. We need to get back to normal; remote SCOTUS is not normal. Maybe it is me, but I have the impression that lawyers who argue cases before SCOTUS add something extra (an intangible) to their argument when it is made in-person. Some may call it performance; others showmanship. I have called it ‘presence’ and being ‘fast on their feet’. That intangible quality is lost with remote SCOTUS and I think we lose something when that quality is not present.

    Maybe VC conspirators who argue before SCOTUS can tell us what they think. Remote? Get back into chambers? Use cameras? Is it pure fantasy on my part the intangible quality I perceive is diminished? I would love to hear their opinion, since they are actually in the trenches.

    1. “Some may call it performance; others showmanship.”, and I call it bullsh!t Charisma or style should have no bearing on justice whatsoever.

    2. XY,
      But could not your concerns be easily and almost effortlessly be addressed by having cameras in the courtroom and NOT having it stream live? It could be on a 5-minute or 10-minute delay (ie, to allow for easy editing out of disruptions . . . once people realize that their disruptions are completely taken out of the video feed, then I suspect that the number of such disruptions would go way down.). If that’s not enough time, then do it on a 1-2 hour delay. Or even a full day’s delay.

      I think it’s obscene that we do not have video archives of important case arguments, since the lack of them is based on the silly (IMO, of course) arguments from 9 privileged, sheltered, cloistered Justices. Hell, I’d be happy to have cameras in the courtroom and have these available after a month or a year.

      1. I think that more than the potential for disruptions by the gallery is the potential of the justices and lawyers to start mugging for the camera/microphone, seeking that ‘viral moment’.

        As much as I’d like to believe that they would be above that sort of behavior, too many of them have shown, even in just the written transcripts, that they have an interest in getting in those ‘pithy one-liners’.

        That said, I do think you are correct about the archive value. Having high-quality cameras and microphones, with the recordings to be added to the archives only after X years (for some small X – maybe 5?) would be a great idea. Just – not anywhere close to ‘live’.

      2. SM811…You ask a great question. My answer to you is: Maybe.

        I am very leery of protestors and quite frankly litigants, turning SCOTUS arguments into a circus. Could a delay in release address this? Maybe. Call me unconvinced, and in the absence of a compelling reason to go to video, I prefer to keep things as they are…but get the justices back into chambers, pronto!

        I don’t see where the upside gain of video is greater than the downside risk. There is audio, and a transcript. Now, I do think that video could potentially capture the intangible quality I mentioned in my post. But the downside risks are simply too great.

        Perhaps in time, if circumstances and civic behavior allow, we can do video. But we are not there today. This, I am 100% certain about.

  2. Which Conspirators have actually argued in front of SCOTUS? I know Orin has done it once.

  3. Thought experiment. All Justices get impeached for their decisions. To deter.

  4. This scares me because of how Farcebook & Twatter are doing to the NY Post stories. Until it is established that Big Tech can’t censor, we can’t rely on them.

    1. What on earth does this have to do with “Big Tech”?

      1. How do you think John Q can (a) find and (b) watch the arguments?

        1. They would type http://www.supremecourt.gov into their browser and click on the case they wanted to watch. That’s how you get the transcripts and audio recordings now…

  5. If we’re going to have cameras, or even an audio livestream, in the Supreme Court, then why admit anyone physically at all? Make the stream publicly available to anyone who wants to watch it, including news and opinion channels which can rebroadcast it, with or without their own commentary added.

    The best cure for Big Tech censorship is to make sure that anyone is allowed to compete freely with any service they provide. Let a million podcasts blossom.

    1. That seems like the best way, if you want cameras in the court room. The attorneys and clients are all that have any reason to be physically present.

  6. People should be able to see their government in action, in person not just on TV, but I think they should be able to see it on TV as well.

    Could the problem of protesters in the Supreme Court be handled by making it a serious crime to interrupt a session in progress. Arrest the protesters and add a minimum 5 year jail term.

    1. They’d just be martyrs.

      1. It’d thin them out fairly quickly…

    2. Recall there was a protestor who snuck into the Supreme Court a few years ago.

      I don’t think something that happens once every few years ought to guide policy. You arrest the spectator and resume the hearing. Also, you keep the camera pointed away from the disruption until the matter is handled. What terrible thing has happened?

      There used to be baseball fans who liked to jump onto the field during the game. Once broadcasters made a point of not showing them the number dropped.

      Sure, if it gets to be a habit you might need to change things, but not until then.

      1. This made me wonder how long after we get cameras in the Court would we get our first SCOTUS streaker. I would be under a year.

        It does seem nuts that we have access to Congress and many important WH meetings but no cameras in the Court. I’m torn on whether public needs to be kept out during streaming or if stream delays with edits are a better choice but whatever system is chosen I think cameras in the Court are just a matter of time and generational turnover.

  7. An audio stream sounds fine, but justice is supposed to be blind.

  8. Lotteries can be gamed in any number of ways. It only takes one or two to cause a disruption. Just one example: groups looking to disrupt the hearings can stack the deck (a lot of people apply), making it likely at least one person gets chosen. There are a lot of ways around a lottery.

  9. “Recall there was a protestor who snuck into the Supreme Court a few years ago. The Court would be hesitant to add cameras in light of that experience.”

    I wonder what would happen if the judges decided that the public highways leading to the courthouse were an extension of the courthouse itself. I bet they’d be prompt to arrest anyone who blocks traffic. The judges and bailiffs wouldn’t sit around pounding their puds and allow the disruption.

    There’s *my* thought experiment.

  10. Just add a 30 second delay to the video feed from the chamber. More than enough time to kill any attempted demonstration before it reaches outside the building. That’s what live radio (closer to 5s), for example, does.

    Removes the incentives, because no demonstrator manages to get on the air.

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