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Tuesday, October 11, 2005

All-Access Pass to the Supreme Court? Roberts v. Souter & Scalia

During his confirmation hearings, John Roberts intimated that (subject to further consideration) he wouldn't have a problem with cameras in the Supreme Court.  Legislation allowing for televised proceedings is currently pending in the Senate.

Souter is widely quoted as having said that "[t]he day you see a camera come into our courtroom it's going to roll over my dead body."  Scalia also opposes cameras in the high court, arguing  that "there's something sick about making entertainment out of real people's legal problems. I don't like it in the lower courts, and I don't particularly like it in the Supreme Court."

My instinct is with Roberts.  And I don't understand at all where Scalia is coming from.  Cases that are heard by the Supreme Court have important national implications; they are rarely so simple and personally sensitive as "real people's legal problems."  Indeed, some cases drive this country's political culture and dynamics.  What can possibly be wrong with educating people about how the Court functions?  And given that Scalia is one of the Court's leading lights on political speech and majoritarianism, I would think that he would see open access to oral arguments as a good thing. 

At the very least, the Court could allow for access to some cases, for instance where the parties agree, or where the issue is one of pressing national interest (I'm talking about cases like Bush v. Gore, Roe, Brown, Kelo, Anna Nicole Smith. . . .).

The only thing I can think of is that Scalia and Souter are really concerned about demystifying the Court.  There may be something to that, since one of the few things the Court has going for it is its mystique.  But my gut tells me that Roberts' gut is right.

I'd love to hear your thoughts on this.

Posted by Hillel Levin on October 11, 2005 at 09:54 AM in Hillel Levin | Permalink


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I think "there's something sick about" treating the Court like the Vatican. Until a couple of years ago, ink pens weren't allowed. Until last year, the justices names weren't provided in the oral argument transcripts. Until the Oyez Project, oral argument audio transcripts weren't widely available. The level of secrecy with which the Court (which is a court of law, and thus should not fear public scrutiny, right) does it business is "something sick."

Posted by: Mike | Oct 12, 2005 1:41:17 PM

I read him as saying that his inclination would be that there was nothing to be afraid of, but he wasn't prepared to make a decision and it would be done in consultation with everyone else. But perhaps you are right. So let me say that I'm in agreement with Specter and Thompson.

Posted by: Hillel Levin | Oct 12, 2005 1:26:27 PM

I think you're going beyond Roberts' response. He said he hadn't really thought about the issue enough to have formed an opinion, and the senator responded that he hoped he'd think about it and consider the issues behind the legislation they're introducing. Roberts didn't seem to have anything to say beyond that. It didn't sound at all as if he was intimating that he'd want to allow cameras in the SCOTUS. It sounded more as if he didn't have anything to say one way or the other but would be open to hearing arguments.

Posted by: Jeremy Pierce | Oct 12, 2005 1:19:27 PM

I join MJ's comments (and, by proxy, Scalia's and Souter's - and you thought I never agreed with Souter!) entirely. It goes without saying that, were SCOTUS procedings televised, I would be glued to the box, but I think that people's curiosity to see how sausages are made, alone, is inadequate rationale to create CSPAN4.

In the meantime, anyone who really is interested and committed enough to see how the court functions is perfectly capable of watching an oral argument. I type this from the wrong side (or the right side, I suppose) of an eighteen hour drive from D.C., but my understanding is that oral arguments are open to the public, and anyone sufficiently interested and committed can go and watch in person.

There is a huge difference, I think, between in camera and off-camera.

Posted by: Simon | Oct 11, 2005 11:43:27 PM

It's not up to the Supreme Court to decide how the Supreme Court should be covered. The Supreme Court does not belong to the individual justices. The court belongs to the American people, and absent some compelling justification for keeping cameras out in particular instances, the court should be as open as possible -- which means television cameras.

Posted by: Bruce | Oct 11, 2005 6:49:20 PM

MJ: I think you are moving in the direction of the "mystique" argument that I cited (approvingly) in the post. I agree that there will likely be consequences. But truly, the Supreme Court is news.

Let me remind you that many of the Bush v. Gore proceedings WERE televised. Now that whole thing was a sham; but it wasn't because of the cameras. I thought that hearing Boise and the others argue was instructive, and I don't remember anyone spinning anything.

Besides, we ALL spin the Supreme Court, don't we? Isn't that what traditional legal scholarship is?

Posted by: Hillel Levin | Oct 11, 2005 1:48:06 PM

Fair points. I'm more sympathetic to the view that the law is different than covering news, though yes, the law is news especially at the Supreme Court level. I think that putting cameras in the Supreme Court would then simply lump the serenity of the highest courtroom in with everything else that gets covered and spun - more reality TV/O'Reily Factor fodder. It's Heisenberg's Uncertainty Principle: you can't observe something without changing it. Adding cameras would change the way the judges and advocates behave, although I admit that I can't say for sure how. That to me is a vice of allowing cameras into the Court, not a virtue.

Posted by: MJ | Oct 11, 2005 1:42:18 PM

MJ: I take that to be a far more serious critique than Scalia's "personal legal problems" argument. However, I am still not persuaded. Television and newspaper reports routinely cover Supreme Court arguments--reporters are allowed--and I have no doubt that those reports suffer the same problems you describe. I don't see how adding a few cameras changes anything, particularly if it were limited to cases where the parties don't care and/or where the stakes are high and the issues of national importance. The media certainly has its problems; but I don't see how we help anything by hiding PUBLIC proceedings from the media. Did O'Connor and Breyer have anything to add on this? I should check the transcript.

Brad: whose privacy and intimacy are you concerned about? The attorneys'? It seems to me that they have the least interest of all.

Let me note that CSPAN covers government proceedings all the time; and I don't really think that this has caused sensationalization of those proceedings. I'm hard pressed to explain why senate confirmation hearings--which are televised--should be any different from oral argument in a certain subset of cases.

Posted by: Hillel Levin | Oct 11, 2005 12:40:58 PM

Justice Scalia spoke more fully on this topic when he, Justice O'Connor and Justice Breyer were interviewed by Tim Russert a few months ago. See http://www.constitutioncenter.org/visiting/PublicPrograms.shtml

There, Justice Scalia stressed that the soundbite coverage that nightly and even cable news would devote to oral argument would most assuredly not reprsent the issues, argument and deliberation that goes into a case which makes it all the way to the Supreme Court. Coverage would then likely be the most colorful soundbites instead of an attempt to really inform the public about what the issues were actually about, or worse: coverage that is selective to try and convey the story that the organization covering the case wants to put out rather than objectivity. As a result, the coverage would likely only serve to confuse and mislead the general public instead of informing them.

He has a point. Watch the coverage of any event covered by CNN and then the same event covered by Fox News and you can see how the framing of a segment, as well as what is not reported in the segment, can give very different impressions of the same news story. Would it serve the American Public to have video of the Supreme Court added to the rest of the heap of the items that are spun and re-spun every night on the news? Because anyone who doesn't think that is what will happen is kidding themselves.

Posted by: MJ | Oct 11, 2005 12:33:19 PM

Given the intimacy of arguing before SCOTUS, I'd be opposed. This is not Court TV or the O.J. Simpson trial.

Posted by: Brad D. Bailey | Oct 11, 2005 12:08:20 PM

What difference does it make? They release oral argument tapes.

(I would really like to see the conferences though!)

Posted by: Paul Gowder | Oct 11, 2005 10:53:05 AM

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