The Supreme Court decision will (not) be televised

Courtesy of TheAtlantic.com.
…Even though the world might be a better place with Sotomayor reaction GIFs. Picture via TheAtlantic.com.

I’m of two minds about Al Tompkins’ Poynter piece (excerpted below) advocating cameras in the Supreme Court, which Andrew Sullivan highlighted on The Dish yesterday:

This is at the heart of what courts do every day in America; they hear the people’s business. It’s not entertainment, like Judge Judy. It is a living civics lesson, and exactly what the public should be able to see.

Live coverage would give the people unfettered access to the words the justices say, and would make it harder for journalists to add their own spin. Live coverage would also help us visualize what’s going on much more than words can.

My thoughts can be divided into roughly two camps: (1) SCOTUS’ Problem with Embracing Technology (or, Why I Think We Will See Live Video of Arguments In the Future), and (2) SCOTUS’ Problem with Protecting Court Integrity (Why Cameras are Both Good and Bad).

On Point (1) about technology, I’ll start by saying that a huge part of me agrees with Tompkins. As someone who really enjoys following Supreme Court oral arguments but isn’t a member of the established SCOTUS press corps and doesn’t live in Washington, D.C., I’m often annoyed at how long I have to wait for the transcripts and audio to be published online. (Even the one-hour wait for this week’s same-sex marriage arguments was a special exception; usually the turnaround is a few hours for transcripts and at least one day for the audio.) I would much prefer to watch the live video, look at the transcript or listen to the audio before I read someone else’s commentary, much like I’d want to watch an episode of my favorite TV show before I delve into the recaps. Breathlessly following the Twitter accounts of no fewer than fifteen SCOTUS reporters during the DOMA and Prop 8 arguments for any pieces of information I could get, I did feel like I was begging for scraps at the gate of a castle.1

So yes, I concur with Tompkins that the Court has an access problem that feeds into its PR problem, and its insistence on keeping itself at this rarefied remove doesn’t help its image at all.2 The continued ban on cameras makes the Court seem particularly stand-offish and quaint in an era where democracy is frequently broadcast live.

Then again, maybe the Court’s whole “trickle down of information” system feels especially antiquated to me because I’m in my twenties, and expectations for democracy have changed over the last 41 years to include an implicit clause about quick (or instantaneous) access. I grew up expecting to see politicians explain themselves live on TV and the internet, and it’s hard for me to imagine a world where that’s not the case.3

The current Court comes from (several) very different generations, however: Justice Ginsburg just turned 80, and Justices Scalia, Thomas, Breyer and Kennedy are all well into their 70’s. Justice Alito is in his 60’s. Justices Kagan and Sotomayor and Chief Justice Roberts are in their 50’s. I can imagine how, to them–particularly the first five Justices–even a several-hour turnaround for publishing transcripts online is already a lot better than how the Court used to disseminate information. According to the Supreme Court website, it didn’t even start releasing same-day transcripts until 2006, and its online collection of oral arguments only extends back to 2000.4 Making the jump from that to live video would be an enormous step for them to take, and clearly a majority of them are uncomfortable with it for a variety of reasons.

I could see the anti-camera attitude changing in the next few decades, though, as certain Justices die or retire and younger Justices are appointed. While it’s not surprising that 74-year-old Breyer and 76-year-old Kennedy are consistently iffy about cameras, Justice Elena Kagan, the newest appointee and the youngest Justice at the age of 52, appears to be more ambivalent about their presence in the courtroom. She’s not quite as sanguine as Al Tompkins makes her sound like–it’s true that Kagan did tell the Aspen Institute in 2011 that cameras were “a good idea,” but he doesn’t mention that just one year later, she told University of Michigan law students that she had “a few worries” about the issue. The third-youngest Justice, 58-year-old Sonia Sotomayor, also seems to have changed her earlier pro-camera position and is now in favor of disallowing them. (I sincerely hope that someone pushes Kagan and Sotomayor a little harder to explain why they have changed their views when they go on their 2013 summer speaking tours.) So, time spent on the Court seems to have pushed our current set of Justices toward a preference for less access,5 but I can see how this might be different in 30 or 40 years, when virtually all Supreme Court justices will have come of age in the Facebook/Instagram/Twitter/live-blog era.

Anyway, all that to say–as a Supreme Court fangirl who isn’t a part of the exclusive club of SCOTUS journalists, I would love to have arguments broadcast live. I think that there’s a good chance this will become reality during my lifetime. However, another part of me also fears for what might happen to the Court when that day comes. Point (2) about the Court’s integrity is where I diverge from Tompkins in his enthusiasm for the cameras.

While there’s something to Tompkins’ argument that we should trust the Justices to refrain from grandstanding on live camera, I’m not so sure that this trust is entirely warranted. (I tend to think that when Kennedy or Kagan speak generally about their fear of colleagues mugging for the camera, they know exactly who they’re talking about.) The successful test case he cites in favor of filmed arguments, United States v. Guam Waterworks Authority, involved one judge, not nine. It was a hearing on a stipulation in a federal trial court, which is a far cry from the highly politicized appellate cases that the Supreme Court hears. Given the number of borderline-to-downright-offensive things that some of the Justices have said just in this term–“perpetuation of racial entitlement” comes to mind–I’m just not sure that these headline-grabbing comments would not increase in number if the arguments were broadcast live. The Justices clearly have political preferences, and it’s hard to imagine that their knowing that the public is watching them won’t change the way they act or the way they prepare for arguments.

That’s just the way humans are, even the very intelligent, unelected ones with life tenure. We care about our legacy and what the public thinks of us. Once we know that the camera is trained on us–and with it, increased chances of appearing on the nightly news, The Daily Show, or YouTube–we instinctively become more performative. There’s a temptation to craft the perfect sound bite, the perfect facial expression in response to something just said. My fear is that the focus will be turned away from the real legal issues and more toward how the Justices present themselves.

And I can see this working in both directions. For every Justice who might start wasting minutes on broadcasting political opinions rather than asking attorneys the “boring” and unquotable (yet necessary) questions about federal diversity jurisdiction or statutory interpretation, there’s another who might get relentlessly mocked on late-night TV for his long, winding, riddle-filled (yet substantive) questions and then be less willing to speak as a result.

Furthermore, the fact that both Kagan and Sotomayor have drifted over to the anti-camera side so quickly after their confirmations gives me pause. Did they change their minds about accessibility because of all the power that went to their heads, as Adam Liptak implies (calling Sotomayor’s about-face “paternalistic”), or did they do so because they’re seeing things we don’t see behind the scenes? Are their obliquely-worded references to the preening of “some justices” just a smokescreen for elitism, or do they have some concrete evidence about how this is going to play out negatively? Just as Tompkins wants us to trust the Justices to behave in front of a camera, the Justices warning against it want us to trust them, too–because we might not like what we see if we get what we wish for. I’d love for these Justices to be a little more specific about their reservations, but I highly doubt that this is going to happen any time soon.

In the meantime, there are some compelling arguments for live broadcasting making our democracy better. As Tompkins says, live video would make for a great civics lesson. More people will become interested in the judiciary and learn how it works. They’ll also learn how different areas of the law work, which can only be a good thing. It’s also plausible that live video might actually lessen the number of polarizing sound bites being made. Maybe knowing that people are watching will make Justices more vigilant about the potentially jerkish things they say. Maybe they’ll make an effort to start speaking more concisely and in a way that the average citizen will understand (similar to how Justice Thomas tries to make his opinions readable for non-lawyers).

Or maybe they really are impervious, as Tompkins thinks they should be, and won’t do anything differently from what they’re doing now.

Anyway, it’s all speculation until the Court actually decides to try something different. Every time I think of an argument for one side or another, a counterargument comes to mind and I am left ambivalent. On one hand, it would absolutely be a great idea for the public to have live access to the oral arguments. (Think about all the amazing GIFs we would get–an endless loop of Kagan whipping out the 1996 DOMA House Report on Paul Clement or a Buzzfeed collection of Sotomayor reaction shots to the things that Scalia says would make my day.) On the other hand, part of me thinks this idea needs to be more carefully thought out given the differences between how each political branch is run. After all, the Supreme Court is not structured like Congress. There are no multi-day hearings, no filibusters. The format of the oral arguments is much more tightly controlled, and each litigant only gets a very limited number of minutes to present their arguments before the Court–one shot and you’re done. Personally, I think it would be a disservice to the litigants if the Court’s oral arguments became bloated with the kind of grandstanding we see on C-SPAN.

Maybe the best compromise for now, then, would be to broadcast live audio. The Supreme Court is already releasing mp3’s of oral arguments anyway. From there, the Court could move toward a pilot program for live video, recording a few of the less “blockbuster” cases (ERISA pre-emption, anyone?) per term and seeing how that goes. While I’m not very optimistic that such a program will happen anytime soon with the current Justices we have, I do think that the Court will, for better or worse, trend toward allowing greater access in the next half-century.

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Post Revisions:

  1. It’s not a surprise that some of those in the SCOTUS press corps have misgivings about letting cameras in, since they have benefited from the Court’s gates being closed to most. Thus, Walter Pincus of The Washington Post, a veteran journalist and one of the “lucky 400 or so” who had a ticket for the DOMA argument, writes of the existing no-cameras policy: “It has to stay that way.” He gives some good reasons why, of course–reasons which I don’t even necessarily disagree with and discuss in this post. Still, while reading his op-ed, it’s hard to shake the nagging sense that, as a member of an exclusive club whose popularity depends in part on the inaccessibility of the Court, his interests extend beyond a mere concern for the state of our democracy.

    It’s worth noting here, though, that even within the SCOTUS press corps there is a diversity of opinion about cameras. For example, Adam Liptak of the NYT, Dahlia Lithwick of Slate and Lyle Denniston of SCOTUSblog have all spoken out in favor of more access. []

  2. One sidenote on the Pew polling data Tompkins cites, which shows falling approval rates for the Supreme Court: the poll didn’t ask respondents why they felt positively or negatively about the Court. Tompkins suggests that allowing cameras might help the Court’s poll numbers rise, but if cameras were permitted and the Justices do end up engaging in more political grandstanding as a result, more people would feel even more negatively about the institution. On the other hand, I don’t totally disagree with Tompkins’ theory that a good number of people might have a better impression of the Court if it allowed live video or audio access. Again, the Pew numbers don’t get into rationales so it’s hard to say without further polling. But I, for one, would be very interested to know the results of such a hypothetical poll. []
  3. Unlike Walter Pincus. []
  4. Oyez.org has argument transcripts from 1980 forward. []
  5. Except for maybe Ruth Bader Ginsburg, who has said on multiple occasions that she would personally not object to live proceedings, but has also emphasized that she would not push for live video if any colleague of hers (i.e. all of them now) opposed it. []

About victoriakwan

Victoria holds a J.D. from Columbia Law School and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @victoriakwan_ and posts primarily on legal issues, especially those involving the Supreme Court.

What do you think?