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Wednesday, November 02, 2011

And this is why we need cameras in SCOTUS

There has been some talk today about yesterday's oral argument in Minneci v. Pollard, a Bivens case argued by Prof. Jack Preis of Richmond Law. A story on Huffington Post by Mike Sacks described a heated exchange in which Preis answer Justice Scalia curtly, followed by the Justice's staring angrily at Preis, then the Chief coming to Scalia's defense by calling Preis on an alleged misquotation in his brief. I have not had the chance to read the transcripts yet, but Jason Mazzone argues that his reading of the transcripts does not jibe with Sacks's account (although Jason admits the transcript does not reveal angry staring from the bench).

All this just reinforces my point about why we need cameras (or at least same-day audio recording) in oral argument. Clearly, news coverage is going to focus on some snippets in many cases in any event (thus defeating the "television means sound bites" argument). Isn't it better to be able to see/hear the snippet or exchange at issue and judge for ourselves rather than relying on a journalistic filter who (inevitably) brings his own perceptions to his description of what he saw and heard? Wouldn't that better enable us to evaluate the argument?

Update: I read the transcript on the plane yesterday and I just don't see it. Certainly there was more to the overall exchange than Sacks' piece suggests. Nor does that section of the transcript reveal the "dressing down" that Sacks describes or the "ducking" of a later question from the Chief. The audio, when it comes out, will allow us to evaluate the whole exchange a bit more. Of course, we still won't be able to tell whether "all nine justice stared sternly back at him." Sacks just forevr has an advantage on us on that one.

Further Update: Not to beat a dead horse, but here is the audio off SCOTUSBlog, with a nice feature that allows you to hear the audio while following along on the transcript. The fun starts at 35:43.  I can't figure this out. Jack's initial response to Scalia, "I'm not surprised that you wouldn't want to hold that, Your Honor," definitely contains an emphasis on you. On the other hand, what follows is an exchange with Justice Breyer and then another exchange with Justice Scalia which, while a probing question, displays no anger or annoyance or even prickliness. And through it all, Jack is able to get out long, composed answers. Same thing in the exchange with Roberts about the quotation. I guess I'm just not seeing it (or hearing it, I guess, since I can't see it).

Posted by Howard Wasserman on November 2, 2011 at 05:23 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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What I'm saying is that the focus of coverage (sound bites, quips, verbal smackdowns, minor issues) is going to be the same with or without cameras/audio. I'm not even sure if I believe that is a "problem" or simply reality, because we have to condense a 30-minute argument into a 4-minute news story or a 750-word column/blog post. And my point is that if this is what our coverage is going to be, it should include (or give us access to) the most complete information or evidence about it that also allows us to explore further, if we choose.

As I argued in my first post on the subject, the argument Asher makes supports not the prohibition on cameras, but the elimination of all media coverage of oral argument. I appreciate your point that the current system may be some second-best solution between full coverage and no coverage. I just believe a fuller measure would not be harmful.

Posted by: Howard Wasserman | Nov 3, 2011 8:59:27 AM

I didn't intend my comment about professors to come off as quite so dismissive: sorry. All I meant is that academics (and me) tend to focus more on the written word, and so it's easy to miss the effect of audio/visual.

But anyways, if you acknowledge that then I think this doesn't work: "Clearly, news coverage is going to focus on some snippets in many cases in any event (thus defeating the "television means sound bites" argument)."

If you think that video would be better *despite* the fact that it will exacerbate the sound bite problem, that's one thing. But the fact that minor issues are focused on even without video doesn't defeat the sound bite concern as easily as you're suggesting.

Posted by: Andrew MacKie-Mason | Nov 3, 2011 1:37:21 AM

We have audio and we can tell, through that, if everyone suddenly got really snippy. Beyond that, my sense is that it would demean the Court if commentators, professional and amateur, were to start parsing the Justices' facial expressions, making note of which ones occasionally appeared to doze off, etc. The more coverage you get of oral argument, the more distorted the public's understanding of the Court would be; people would begin to think cases were decided on the basis of which lawyer annoyed the Court more than the other, or who essayed the snappiest one-liner. When in reality, oral argument plays an outcome-determinative role in a tiny fraction of cases. I think the state of coverage today, minus some of the worse reporters (like the fellow you linked to), is the best of all possible worlds. Transcripts and audio for people who really care, but nothing so vivid that it can make its way to cable news.

Posted by: Asher Steinberg | Nov 3, 2011 12:17:10 AM

Actually, Andrew, that's not my assumption at all. Quite the opposite. I am very much aware that the video/audio will have a different effect than the words relayed through a journalist (see, I can figure some things out even though I'm a professor). My point is that I want the one that has the strongest, most captivating, most accurate presentation that allows the public to decide what happened and what it thinks about what happened.

Is this a relatively trivial issue? I suppose. But that doesn't mean it falls outside the public interest. This is a public institution performing its *public* functions and how it does that (in ways great and small) is a matter of public concern.

Posted by: Howard Wasserman | Nov 2, 2011 11:45:45 PM

"Clearly, news coverage is going to focus on some snippets in many cases in any event (thus defeating the "television means sound bites" argument). Isn't it better to be able to see/hear the snippet or exchange at issue and judge for ourselves rather than relying on a journalistic filter who (inevitably) brings his own perceptions to his description of what he saw and heard?"

You're too quick to dismiss the "television means sound bites" argument. You assume (perhaps understandably, coming from a professor) that accounts from transcripts or relayed through journalists can have the same effect as actual short clips from video. They can't, for various reasons, including that second-hand accounts are inherently less captivating for the average TV audience.

Also, I'm with the above commenter in that this seems like a rather trivial issue on which to base a cameras-in-the-court argument. If anything, doing so strengthens the position of people who think that such a change will only make coverage of the Court more tabloid-esque.

Posted by: Andrew MacKie-Mason | Nov 2, 2011 9:11:28 PM

I guess I still don't understand this, but even if I understood better the need for video cameras, it seems to me that of all the possible situations in which one could make an argument that it would be useful to have cameras in the courtroom, this doesn't seem like a very compelling one. What difference does it make whether Justice Scalia and Professor Preis exchanged a heated word and Chief Justice Roberts came to his colleague's defense? In this context, what having a camera will do is to allow for hundreds of thousands of opinions on a completely irrelevant matter, rather than the few dozen we've got now. On the misquotation issue, if one really wanted to get a sense of this, it's easy enough to compare the brief against the transcript. But it doesn't seem to me that that's what people are really after -- it's the coming-to-the-defense question.

Posted by: Marc DeGirolami | Nov 2, 2011 7:10:42 PM

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