Headline of the Week: "Hear Ye! No See Ye! Why the Supreme Court Is So Afraid of Cameras"

From CNN (Zachary Wolf). It's also an interesting opinion piece, but I'm posting about it just because of the headline. Obligatory tip of the hat, as to headlines generally.

Comments

[Mr. Bumble]

"Congress could theoretically force cameras into the court, but there’s an open question about whether Congress, a separate power, should be forcing the court to change its policy. "

On what basis? Maybe with the inferior courts but I don't see them having any authority to do this to the SC.

[LawTalkingGuy]

Limit their appellate jurisdiction to cases in which they will permit cameras for oral argument.

[Rev. Arthur L. Kirkland]

Brilliant!

After enlargement, of course . . . in which circumstance it might not be necessary.

[damikesc]

I see no explanation as to how cameras will make the process any more efficient. Cameras have not helped avoid trials in lower courts from turning into circuses.

[apedad]

Article III
Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Congress pays the bills so can also say how funds are spent.

Just like Congress established the Supreme Court of the United States Police which is a federal law enforcement agency that derives its authority from 40 U.S.C. § 6121.

I can easily see Congress enacting a law that sez cameras will be installed, used, etc.

[Currentsitguy]

That's a hard call. I'm thinking they can pay for them, and even require they be installed, but I'm not sure they can force anyone there to flip the "on" switch.

[shawn_dude]

If Congress created and funds the SC Police, they can have them switch them on.

[Mr. Bumble]

...and the SC could refuse to hold sessions until they were turned off and removed.

[MatthewSlyfield]

Or hold sessions in a hotel conference room somewhere.

[Mr. Bumble]

...and who would enforce it?

[LawTalkingGuy]

Congress could withhold appropriations until they comply. Maybe they can’t cut judicial salaries, but they don’t have to pay for anything else.

[Mr. Bumble]

You're placing a lot of hope in a bunch of feckless bastards who won't or can't even do those things that they were empowered to do.

[Alpheus W Drinkwater]

Ha ha don't inject your realism into our hypothetical scenario.

[Toranth]

Do you think Congress can do it until SCOTUS rules "correctly" on the next abortion case? And the gun case after that? And the drug case after that?

[LawTalkingGuy]

Sure. Why not. The constitutional structure allows for that, and indeed the “power of the purse” is a pretty basic check on the other branches.

I mean that’s not even the craziest thing Congress could do. It could remove the Court’s discretionary docket and make all federal traffic tickets directly appealable to SCOTUS with free filing fees.

[Toranth]

Using the power of the purse to control the outcomes of cases seems like a bit of a separation of powers issue.
Even in this case, about cameras, it seems over the line - like making Executive branch funding contingent on having public cameras at every single meeting with a foreign representative.

[Alpheus W Drinkwater]

More to the point, who gets to decide whether those Congressional actions stand as a constitutional matter? The same nine people who's wishes are being thwarted by those actions.

[Noscitur a sociis]

Who enforces any restriction on the Supreme Court’s authority? Or that of any other branch, for that matter?

[Noscitur a sociis]

1. Congress has the final say on passing rules of court procedure; it could revoke or condition its grant of rulemaking power to the Supreme Court at any time, and even under current law, the Supreme Court's rules must be "consistent with Acts of Congress". 28 U.S.C. § 2071(a).

2. Why would Congress's power to make such a rule be different for different Article III courts?

[Jacob Grimes]

If this article is any indication, Zachary Wolf is insufferable and understands nothing about the Court as an institution. Reading through all of it, I don't think it's meant to be tongue-in-cheek.

"They're accountable to no one!" Well, yeah. That's the point.
"A lot of people would like insight into the decision-making process!" The filings, opinions, and oral argument transcripts are publicly available.

[shawn_dude]

Is that also true of the shadow docket?

[Noscitur a sociis]

To the extent there's a problem with the shadow docket, allowing video of arguments doesn't seem like it would help. If anything, it would seem like it would motivate the camera-shy justices to try to shift more of their work in that direction.

[Joe_dallas]

Televise oral arguments for what reason?

Oral arguments are a very minor piece of the action.

Lets complain about something substantive

Lets televise cabinet meetings
lets televise congressional committee meetings
lets televise jury deliberations, etc

[Eugene Volokh]

Well, to be fair, cabinet meetings and jury deliberations are historically private. So are some congressional committee meetings, though others are public and indeed televised.

Court hearings have long been understood to be public, not secret. The question is whether they should be visible to the public generally, and not just to the few people who are in the courtroom.

[Mr. Bumble]

I think Joe Dallas was using hyperbole to make a point.

There really is no way that SC sessions could be considered "secret". Yes space does limit the number of members of the general public from viewing in person, but almost all SC cases are widely covered by the media and audio is also available (not sure if that is in real time).

The biggest problem would be perspective. How many cameras? Where are they pointed? I think anyone who has been involved in a "zoom" trial will appreciate that television is not real.

[Joe_dallas]

EV- I concur with the concept of being open to the public.

Though I see it as playing to the camera.

[Rev. Arthur L. Kirkland]

Oral arguments are public proceedings.

I am not aware that anyone is proposing recording or broadcast of the judges' deliberations in chambers.

Other than that, though . . . still not a great comment.

[Gasman]

Joe_dallas:
CSPAN has been televising congress' floor debates for decades, and that is a very minor piece of the action too.
The rest of the things you suggest (cabinet meetings, congressional committee) differ significantly in that they do not represent the substantive constitutional process (how a bill becomes a law as it were) but are intermediate steps.

[Ben_]

Because they don't want justices or attorneys or anyone else in the court to "perform"? If anyone involved is playing to the camera or the viewers, it's not a plus.

[Noscitur a sociis]

I understand the logic of the concern, but I don't think it's well-taken based on experience. The Ninth Circuit takes video of all its oral arguments, while other 12 have audio only (like the Supreme Court does currently), and I can't identify any noticeable difference in advocacy style. Likewise in state criminal trials in my area (where high profile cases are routinely recorded and photographed by the media) versus federal ones.

[Mr. Bumble]

So how much does oral argument play in crafting a decision? This isn't like a trial with witnesses and exhibits. Seems like a lot of the decision making process is on the back end, with briefs by the parties and amici.

[Noscitur a sociis]

Almost every appellate argument I've done has offered at least one important opportunity to make a key point that didn't seem to have occurred to at least one judge on the panel. I'm sure they would have figured out at least some of them on their own later, but I appreciate having the opportunity. I would agree that those opportunities are less common at the Supreme Court.

[LawTalkingGuy]

I can’t find a good data set on this yet, but I think the filming and posting of oral arguments for state supreme courts is pretty common too.

[myself]

Possibly, but it's fairly rare that national media starts going on and on about some case before the Ninth Circuit, if for no other reason than if it really matters it's hitting the SCOTUS. So I don't think those bad influences come into play. But once it hits the SCOTUS it becomes big news.

I would be concerned about Lawyers using the platform to influence public opinion instead of the court (or worse, build themselves a public brand to transition into politics).

I'd be even more concerned about the judges getting addicted to the thrill of seeing a clip of their probing question making the news cycle, or even Presidents recognizing the political benefit in nominating a telegenic judge who keeps popping up in news broadcasts.

[Archibald Tuttle]

I think Justice Kagan leaked the real reason for opposition. She said, "It's hard to play devil's advocate on TV."

That's true. Negative attack ads are highly influential in modern elections. A video clip of a justice playing devil's advocate could be influential, and it would be truthful because he/she really did say that. Clips can also be made from audio, but video has so much more emotional impact.

If TV was allowed, they would need blinking red signs behind them flashing "DEVIL'S ADVOCATE" or "SARCASM".

[myself]

That's a very good point.

Justices have a reputation for integrity (moreso than anyone else at least).

And nothing undercuts a political position more than a high integrity / high status member of the group contradicting it.

Right now the justices seem to ask questions without much concern as to the media spin, I don't think that would work if it was televised.