The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.