Senator Arlen Specter (D-Pa.) opined on the floor of the Senate yesterday that the Supreme Court justices, whose qualified collective opposition to the notion of allowing live broadcasts of the high Court's oral arguments has supposedly precluded the practice from taking hold, have consistently undermined their own rationale for such a lack of transparency. After all, Chief Justice Roberts and Justice Stevens have appeared on ABC's "Primetime," Justice Ginsburg on "CBS News," Justice Breyer on "Fox News Sunday," and Justices Thomas and Scalia on "60 Minutes"; all nine members of the Roberts Court recently participated in lengthy interviews for C-SPAN's Supreme Court Week. "We cannot accept the justices' plea for anonymity," Senator Specter concluded, "when they so regularly appear before the camera."
If such is Specter's argument, I cannot accept his intellectual honesty. Having presided over the nomination hearings of two prospective Supreme Court justices as chair of the Senate Judiciary Committee, the Senator knows perfectly well that the justices' conservatism on the issue does not stem from an inexplicable desire to roam the streets undetected. They are concerned that the practice of allowing cameras in the Supreme Court at the oral argument stage might change their interpersonal dynamics by providing a cause to suspect one another's motives, highlight a process largely unrepresentative of how the Court decides cases, and accelerate the politicization of its day-to-day business.
There is certainly a strong case to be made for the introduction of cameras into the Supreme Court. Justice Souter, the proposal's most steadfast opponent--he famously declared in front of a House Appropriations subcommittee that "the day you see a camera come into our courtroom, it's going to roll over my dead body"--has now retired from the Court, and his successor seems not to have minded the fact that many oral arguments were televised on her 2nd Circuit Court of Appeals. The new Supreme Court of the United Kingdom was conceived so as to approximate the American separation-of-powers model, yet it has permitted cameras from the outset. Ours is the most vibrant democracy on Earth, and voters have every right to be informed of the proceedings at the highest levels of government in order to make wise decisions at the polls. Televising the Court's oral arguments would serve a tremendously educative function, enlightening citizens as to the art of American jurisprudence in general and the professional craft and intellectual demands of judging on our highest appellate court in particular. No one seriously contends that every waking minute of our elected officials' lives should be televised for their constituents, but C-SPAN provides gavel-to-gavel coverage of the House, Senate, and various committee sessions. Similarly, though it is surely in our national interest to preserve the confidentiality of most deliberations in the Situation Room, the president understands that most actions performed and words spoken in his public capacity are fair game for YouTube and the evening news.
But there are also several compelling arguments against allowing cameras into the Court, and it is these that proponents of the change must address. Justice Kennedy said on February 14, 2007 before Senator Specter's Judiciary Committee that the Court's present collegiality "is a dynamic that works. Please don't introduce into the dynamic that I have with my colleagues the insidious temptation to think that one of my colleagues is trying to get a soundbite for the television." Justice Kennedy's remarks also raise a separation-of-powers issue: Congress, of course, was the driving force in the decision to televise its proceedings; it would hardly have complied with an executive order or judicial dictum to the effect that Congress must broadcast its happenings before a sufficient quantum of legislators consented to such an outcome. Why, then, should another branch of government presume to decide conclusively matters within the institutional province of another and about which the justices themselves are most intimately knowledgable?
Another consideration is that television of the oral argument process would allow viewers insight into the least insightful phase of the process by which the Supreme Court ultimately renders its decision on a case. Far more important are written briefs, the justices' private Conference meetings, one-on-one conversations, communication between law clerks, and the actual opinion-drafting process. Given scholarly studies that the Supreme Court rarely shows blatant disregard for prevailing public opinion as to the proper outcome of a case, lawyers arguing before a high Court with cameras might succumb to the temptation to politicize the legal minutiae in question and facilitate the exertion of external, extralegal pressure on jurists whose life terms were provided largely to insulate them from public opinion. Furthermore, written transcripts and audio files of the Court's oral arguments are released online only days (and, in some cases, hours) after the arguments have taken place. Citizens who would like to acquire a level of familiarity with the Supreme Court's public business may do so already; subjecting oral arguments to the ideological filter of cable news would likely effect, at the very least, a moderate lessening of the Court's prestige, and that prestige is the Court's only weapon in ensuring that its decisions are ultimately respected and complied with. Lastly, the Supreme Court is the most visible symbol of the American judicial process, and it would become even more so were cameras to be introduced; arguments against installing cameras in every federal and trial court in the land might then become insurmountable. But there is an obvious interest in shielding witnesses and jurors from the scrutiny and ostracism of a hostile community.
This debate is healthy and unlikely to end anytime soon, yet regardless of the outcome, I hope it is resolved after a rigorous evaluation of the merits of each position and not the disingenuous fabrication and obliteration of straw men.
