commentary The idea of opening up U.S. Supreme Court oral arguments to cameras received a welcome endorsement this week from Elena Kagan, who has been nominated to succeed retiring Justice John Paul Stevens.
"It would be a terrific thing to have cameras in the courtroom," Kagan told a U.S. Senate committee during the second day of her confirmation hearing.
It's about time. There's no good reason why, in an era when video from everything from law enforcement's adventures in Tasering to celebrity criminal trials finds its way to YouTube, the Supreme Court should remain stuck in the 19th century. Instead of live streaming video, we get handed chalk sketches and slow-to-be-released transcripts.
A C-SPAN poll released on Tuesday (PDF) said that 63 percent of Americans support cameras in the court, with equally broad support across political parties. By a three-to-one ratio, voters say cameras would increase respect for the court, not decrease it.
Proposals for Webcasting or televising arguments before the nation's highest court have been advanced before, of course, but have been defeated by a combination of bureaucratic inertia and dogged resistance by individual justices.
Former Justice David Souter once said that "the day you see a camera come into our courtroom it's going to roll over my dead body," adding that his experience in New Hampshire courts had made him wary of asking pointed questions that could become fodder for television newscasts. "The whole point of the Supreme Court is that it is not a political institution and it is not part of the entertainment industry of the United States," Souter said in 1996.
A poll last month showed that 53 percent of Americans believe that Supreme Court justices have their own political agendas; only 29 percent say that justices are impartial. (If Souter were correct, Webcasting or televising oral arguments should reassure the public that, certain recent 5-4 decisions aside, the judges are above politics.)
Kagan was even more enthusiastic on Tuesday: "It's an incredible sight. Because all of these--all nine justices, they're so prepared, they're so smart, they're so thorough, they're so engaged. The questioning is rapid fire. You're really seeing an institution of government at work, I think, in a really admirable way."
Unfortunately, a significant amount of that bureaucratic inertia remains: Justice Stephen Breyer told Congress in April that the a court proceeding "tends to take place much more in writing and much less even in conversation among us than say a job like yours." (That's also an argument for publicizing the one small bit of insight into the court's proceedings the public receives.)
Justice Clarence Thomas was more even-handed. "If you bring...cameras into the oral argument there's a big plus for the court and for the public," he told a House committee. "I think they'll see that we do our job seriously. We don't always get everything right, but we take it very seriously."
Thomas added, however, that adding cameras to the Supreme Court would encourage lower courts even in sensitive criminal cases to follow suit, which could cause some problems with juries and witnesses.
Probably the best argument for Webcasting the court's proceedings is that all 50 states already are doing it, in some form or another. Nearly all states permit cameras in appeals courts, and well over half permit them in both civil and criminal trial courts.
State supreme courts have followed suit--with positive results. New Jersey's Supreme Court features live Webcasts and archived ones, as does New Hampshire, West Virginia, Indiana, Mississippi, Maryland, and Texas. Canada has allowed cameras in its Supreme Court, with no evident damage to its fabric as a nation.
C-SPAN has, to its credit, been pressing for cameras in the Supreme Court courtroom for years. (Here's its Web site on the topic.) So has Sen. Arlen Specter, the Pennsylvania Democrat.
Under the current arrangement, as the Washington Post reported earlier this year, even audio recordings of the court's proceedings are not generally available.
The justices recently denied seven requests for audio streams, while releasing the same-day audio of oral arguments in Citizens United v. Federal Election Commission. The audio for the important Second Amendment case DC v. Heller two years ago was released, but not this year's followup case titled McDonald v. Chicago, which extended the right to keep and bear arms to all Americans. Audio from Justice Samuel Alito's investiture in 2006 was forbidden, but cameras were permitted to film Justice Sonia Sotomayor's swearing-in last year.
Henry Schleiff, then-chairman of Court TV networks, reminded Congress in 2005 that cameras used to be commonplace. "Until 1935, cameras and newsreel photographic equipment were widely permitted in trial court proceedings," Schleiff said. "Cameras and newsreel photography and radio microphones were permitted at the historic 1924 trial of Leopold and Loeb, argued by the now legendary Clarence Darrow, and the 1925 trial of John T. Scopes, the so-called 'monkey trial.'"
That's what judges might call a very good precedent. In April, Justice Thomas acknowledged that "I think there are things to be learned and I think eventually we'll get the comfort level." If Kagan is confirmed, assuming she doesn't change her views once on the bench, that should happen sooner than later.
Excerpts from Elena Kagan's Senate confirmation hearing
SEN. SPECTER: The best answer that a group of senators--and we talk about this with some frequency--can come up with is to put some sunlight on the court. As I said in my opening statement, the disinfectant that Brandeis talked about, sunlight, the best disinfectant. Well, it's not quite a disinfectant, but I think if the public understood what was happening, there would be a strong temptation to stand by what had been said in these confirmation hearings.
And I was really glad to hear you say, in response to Sen. Kohl's questions, that you favor televising the Supreme Court. I think we may be getting closer.
I've been at it for more than a decade with a whole series of bills. And recently, the Judiciary Committee voted out a bill to televise the Supreme Court 13-6, and we did it a couple of years ago 12-6. And I know it's going to be something the court is going to have to come to, perhaps on its own, but the public views are increasing.
A poll which was released by C-SPAN just yesterday shows that 63 percent of the American people favor televising the court. And among the 37 percent who opposed, when they were told that people can only be in the Supreme Court chamber for about three minutes, accommodates only a couple hundred people, 60 percent of those 37 percent thought the court should be televised, which brings the total to about 85 percent.
I know we don't run the court by public opinion polls, but isn't that fairly weighty as to what the--the American people would like to--like to know?
We talk about a living Constitution and about the Constitution expressing the changing values of our society, as Cardozo said so eloquently in Palko. If the people of this country knew that the court was deciding all of the cutting-edge questions -- a woman's right to choose, who lives, death penalty cases for juvenile, who dies, affirmative action, who gets into college, freedom of speech and religion -- the American people responded in a poll to Citizens United, 85 percent thought it was a terrible decision, 95 percent thought that corporations made contributions that influence legislators.
One of the great problems of the skepticism of the American people about Congress--and is it heavy out there--it's open season on Congress because of so much of what people think about.
Well, coming back to the court, wouldn't it be--well, you've already said you're in favor of televising the court, but wouldn't televising the court and information as to what the court does have an impact on the values which are reflected in the American people?
KAGAN: I do think, Sen. Specter, it would be a good thing from many perspectives. And I would hope to--if I'm fortunate enough to be confirmed--to engage with the other Supreme Court justices about that question.
I think it's--it's always a good thing when people understand more about government, rather than less. And certainly, the Supreme Court is an important institution and one that the American citizenry has every right to--to--to know about and understand.
And I also think that it would be a good thing for the court itself, that that greater understanding of the court, I think, would redound to its own advantage. So I think, from all perspectives, televising would be a good idea.
And now I realize that some people--some justices may have views to the contrary, and I would want to hear those views and to think about those views, but--but--but that's sort of my going-in thought, which...
SPECTER: I will put into the record what the justices have had to say. I've questioned almost everybody about this subject, and I've had the opportunity to question all of the people on the court now.
But there's a lot--there are a lot of those who have been favorably disposed to it--or at least have acknowledged its inevitability--and remind them that they all appeared on television this year on C-SPAN, and most of them--many of them have appeared over the years selling books and being in a variety of situations.
KAGAN: It means I'd have to get my hair done more often, Sen. Specter.
SPECTER: Let me commend you on... Let me commend you on that last comment.
And I say that seriously. You have shown a really admirable sense of humor, and I think that is really important. And as Sen. Schumer said yesterday, we're looking for somebody who can moderate the court, and a little humor would do them a lot of good.
In the case of Richmond Newspapers v. Virginia, the Supreme Court said in--that a public trial belongs not only to the accused, but to the public and press, as well. People now acquire information on court procedures chiefly through the print and electronic media. That's a 1980 decision which upheld a newspaper's rights to be in court and observe a trial.
Isn't that some pretty solid precedent, to say that as a legal--a matter of law, the court ought to have television to have public access, because that's the way most people get their information these days?
KAGAN: That's very interesting, Sen. Specter. I had never considered the relevance of that case to the--the televising question, but I think that the--certainly the principles in that case, the values in that case are about the public's ability to know how our governmental institutions work, which is what's critical to this issue, as well.