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Sunday, January 31, 2016

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts.  The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.

The success of the district court pilot, which I explore in  much more detail here, offers an excellent blueprint for a parallel Supreme Court program.

First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.

Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.

Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.

At least, we can hope.

N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.

Posted by Jordan Singer on January 31, 2016 at 12:14 PM in Judicial Process, Law and Politics, Television, Web/Tech | Permalink

Comments

I'd personally be happy if the Supreme Court started televising arguments, but I'm not sure why the district court program offers an argument for doing so. And I think it's important to focus on the comparative question: Does watching the video of an appellate argument offer a much better learning experience, and increase the transparency and legitimacy of the court, as compared to the audio and transcripts of the argument that are currently available-- combined, of course, with public release of the Court's opinions? Maybe, but I'm not sure.

Posted by: Orin Kerr | Jan 31, 2016 2:12:21 PM

Transparency in process is, I think, always desirable, and I also really like the argument for its benefit to legal practitioners. What I don't understand is what would be gained, from a public transparency point of view, from televising court proceedings. What does the public gain from actually being able to see the faces of the people uttering the words they hear on the already extant audio recordings? Moreover, is that gain worth the loss that comes from the neutrality lost in video editing? Unless they only plant one camera, and never include closeups of the justices or attorneys (which are the result of TV production editors' decisions), it seems to me that televising will always be inherently less neutral than simply listening to audio.

Posted by: Eric | Jan 31, 2016 4:17:09 PM

In answer to the second comment:

I gather members of the media would argue that simply hearing tapes of the arguments would not be equal to being there in person and seeing the expressions on the faces, the body language and related things.

Perhaps, it would be helpful if a study is linked to or summarized a bit more per the "cognitive benefits accrued from watching a live event" reference in the discussion. Without more, I would assume that merely listening to an oral argument here would not be as easy for a person to understand than watching something on the t.v. People often find it easier to watch a t.v. news program, e.g., than merely listening it on the radio. Photos help understanding. CSPAN seems to think so, since when they play the audio they use photos of the people speaking. This to me is fairly obvious though maybe not?

Audio also is not as helpful for full "transparency and accountability," which is another thing gained. Merely hearing audio isn't completely equivalent there, which is one reason the right to a public trial is not only upheld by transcripts and audio -- people come in person. Also, for the general public and particularly those with hearing problems, mere audio might not

There is a concern for neutrality, but it has to be weighed with all the other stuff. Net, just how much loss of neutrality is there, especially since I gather CSPAN (or whoever is in control) will do so in an expertise way? Is the argument being made that the video we have now is a problem in this context? Is the Canadian Supreme Court, which has video, less neutral? Anyway, people can still just listen to the audio and determine what lack of neutrality exists.

Posted by: Joe | Jan 31, 2016 6:50:20 PM

I have always thought that the case for televising district court proceedings is by far weaker than the case for televising Appellate Court proceedings. Appellate courts don't hear witnesses, they don't have jurors and given the nature of debate before the Supreme Court (and to a lesser extent the subordinate Appellate Courts) there is no real risk of lawyerly grandstanding[1].

Eric,

Neutrality concerns are trivially solved. The Supreme Court of Canada and the United Kingdom Supreme Court have voice activated cameras that automatically focus on the speaker this entire video feed is then broadcast by their respective national TV channels. (CPAC for Canada and BBC Parliament for the UK)

Re: Your first point, I would urge you to watch any one of their webcasts (I recommend one of the Carter hearings: http://www.scc-csc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=35591) and then compare it to any SCOTUS audio recording. I find it hard to explain the difference in words, but I assure you it does exist.


[1] The Supreme Court of Canada has had cameras since 1990 and the Cheif Justice says there has only ever been one instance of a lawyer pandering to the cameras.

Posted by: Pranav | Feb 1, 2016 1:03:34 AM

I appreciate the information regarding UK and Canada.

As to the case for the district courts, there will be concerns in some cases, but net it also will be important given public demand and visuals being more important in trial courts.

So, I think it's still important, though it should be a lot easier to televise the much shorter Supreme Court oral arguments. Plus, at the very least, televise opinion announcements, orders and other public events. These to me are basically there for show anyways and grandstanding would not even be an issue. Plus, opinion announcements unlike oral arguments do not even have transcripts though eventually Oyez.com generally has them.

Posted by: Joe | Feb 1, 2016 1:28:11 AM

I'd like to suggest a more-pragmatic circumstance that justifies cameras in the courtroom:

Justice X hears argument on the first Tuesday in October. On the third Friday in October, Justice X unexpectedly dies after a horrible gardening accident.* Justice X' is appointed and confirmed during the fourth week of the following March, and at her confirmation hearing proclaims that for the first year she intends to follow Justice Thomas's practice of "no questions, let the lawyers make an uninterrupted presentation."

So: Should the cases heard at the beginning of the Term be held over for the next Term (as is traditional on "difficult" questions, even when there isn't a 4-4 split)? There's no time to reschedule argument this Term to allow a new Justice who has no intention of asking questions to "participate." Instead, he/she would be stuck with transcripts and audio-only; although that has been done at the Courts of Appeals, I think it much less satisfactory than a video record. Body language matters to communication, folks. (OTOH, it seems to me that the Court's institutional refusal to acknowledge that is also bound up in the multiyear wait for the bound — official — versions of its pronouncements...)

* Spinal Tap reference entirely intentional.

Posted by: C.E. Petit | Feb 1, 2016 12:14:08 PM

I've always thought one legitimate criticism (legitimate, not necessarily dispositive) of video for SCOTUS arguments is that it further exaggerates the importance of oral argument. The news media already perpetuates that myth. Video would probably make it worse.

Personally, I think the value of increased transparency is still worth the price, especially if the video is accompanied by additional materials that help put it in context, as Jordan suggests. How great would it be as an educational tool to have all of the briefs, argument videos, transcripts, and opinions indexed, linked, and presented together in one convenient place?

Posted by: Anon E. Muss | Feb 1, 2016 7:04:32 PM

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