Legal News: Cameras in the Supreme Court?

Check out this article on the recently re-introduced bill, sponsored by Sen. Arlen Specter (R-PA), to require the Supreme Court to televise its proceedings. Specter has advocated televising the Court's proceedings before, by sponsoring SB 1768 last year to that effect, but his proposal did not reach the Senate floor. Regardless of your attitude toward the Supreme Court, however, the bottom line remains the same-is Specter's legislation (co-sponsored by one other Republican and three Democrats) going to benefit or hinder the Court's deliberative process?

To take a look at this issue, I am going to examine some of the senator's arguments, from his statement in the Congressional Record made upon the bill's re-introduction. The new bill is known as SB 344.

- "With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions."

The problem with this reasoning is that Specter's bill only televises oral arguments, not the justices' conference, discussions with law clerks, or any other internal communications that may contribute to deciding the outcome of a case. Televised coverage of oral argument would allow the public to see only a part of the case, excluding other facets that have as much or greater bearing on the ultimate disposition. In order to put much of what is said at oral argument into context, one could read the briefs that are available on the Court's website, but even this would be an incomplete picture. No one, not even the justices' office staff, are allowed in the room during conference. Ultimately, without delving into the briefs and other documents related to the case, a televised oral argument would lack the context needed to accomplish the bill's purported goals.

- "In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States."

The decision to which Senator Specter is referring is Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), in which the Court, in an opinion written by Chief Justice Warren Burger, upheld the right of the public to attend criminal trials. In the opinion, he cited freedom of the speech and press, as well as the Due Process Clause of the Fourteenth Amendment. However, it is important to note that Richmond dealt with allowing members of the public to attend trials, and criminal trials at that, not with any specific right to televised media coverage (although media coverage, through members of the press, is implicit in the right to attend). Whether the Court would recognize a constitutional right to television coverage of its own proceedings is open to speculation (although I doubt Justice Souter would be writing that opinion-he is quoted as saying that television cameras would enter the chamber "over my dead body").

As the senator noted in his introductory statement, the Court could opt out of television coverage when necessary to protect the Due Process rights of one or more of the parties involved. However, if this bill passes, any such decision by the Court would be subject to strict scrutiny, and must be narrowly tailored to achieve a compelling government interest. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

- "I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices."

At this point, the question becomes what television cameras will add to the process that is not already gained by allowing transcripts and audiotapes. Requiring Supreme Court oral arguments to be televised would give Americans a visual component to what had previously been depicted only in drawings and playing back a tape recording on the news that night. One could gain from the large percentage of communication that is purported to be visual, while being able to observe the process of oral argument for what is probably the first time. One of the positive effects would thus be transparency-while oral argument is not the only factor in the justices' decision, it may provide a window into their thoughts on a particular case, and thus make the Court seem more "accessible" to many Americans.

However, like many Supreme Court opinions, we must here employ a balancing test. Televising the Court's oral arguments could potentially demystify the process in the minds of many people, and educate the public about what goes on after the first "Oyez." But introducing television cameras also introduces the weapon of public opinion. Though the Court may not be as susceptible to political pressures as Congress, the justices are nonetheless a product of their time. Who can doubt that this was behind some of the most noteworthy (and in some cases, notorious) Supreme Court rulings in our history? Korematsu was handed down in the wake of Pearl Harbor, with our country teetering on the brink of defeat in the Second World War. A few years earlier, West Coast Hotel v. Parrish was the "switch in time that saved nine," sparing the justices and the nation from FDR's Court-packing plan. And more recently, we have borne witness to an entirely new form of political influence, this time coming from Ottawa, Sydney, and the halls of the European Parliament in Strasbourg. Allowing counsel access to television cameras introduces the possibility that the medium will be used for such invasive means, with ramifications no one can yet grasp.

These are just a few of the arguments for and against televising the proceedings of the Supreme Court. Overall, like the country, the justices are divided on the use of this technology: Justices Scalia and Ginsburg are accepting of the idea, while Justices Thomas and Souter are opposed. My prediction is that the idea will not be adopted, barring a supermajority of justices, perhaps seven or eight, willing to put it into place.

Sources:
Statement on the current bill
Statement on the previous bill
NPPA Article on SB 1768