Hear Ye! No See Ye! Why the Supreme Court is so afraid of cameras

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If The Onion can make fun of Supreme Court briefs in an effort to get justices to hear the case of an Ohio man jailed for parody, then please forgive a TV news employee writing, again, about the lack of cameras in federal courts.

It’s not an issue that is getting much attention at the moment, but it’s worth considering today for a few reasons:

The court sets rules for its procedure and since 1946 it has expressly forbidden cameras of any kind in federal chambers, with few exceptions. And so allowing cameras would be upsetting a precedent of sorts – and maybe justices aren’t into that, except when they are. There are some exceptions stemming from a pilot program that ran from 2011 to 2015, but the courts ultimately decided to stay out of view. The 9th Circuit does sometimes allow cameras inside. Here’s what what looks like.

Congress could theoretically force cameras into the court, but there’s an open question about whether Congress, a separate power, should be forcing the court to change its policy. Read more on that and a history of the debate over cameras from the Congressional Research Service.

Former Sen. Arlen Specter of Pennsylvania was a fierce advocate of placing cameras in the courtroom (he left office in 2011), and he asked several Supreme Court nominees about it. Once they get their robes they seem to oppose cameras, when they’re interviewing for the job, they’re open to it.

“I don’t have a set view on that,” now-Chief Justice John Roberts said as a nominee.

“It would be presumptuous for me to talk about it right now, now-Justice Samuel Alito said during his confirmation hearing, although he teased that he previously supported cameras in federal court.

“It would be a good thing from many perspectives,” now-Justice Elena Kagan told Specter at her confirmation hearing. Watch it here.

All three justices have moved from openness during confirmation hearings to opposition once they’re on the bench.

Sidebar: Given the overturning of Roe v. Wade with help from justices that previously recognized it as precedent, these and other post-confirmation evolutions should come as no surprise.

Here’s an in-depth look at why these three justices all now oppose cameras in the court room. (I’ve taken the liberty of adding my own responses to their reasoning in parentheses).

The comments from Kagan and Alito come from 2019 testimony before a congressional committee. But we’ll start with comments from Roberts, which were delivered as part of a Q and A in 2018. Watch it here. He was asked if the time has come for cameras in the court.

ROBERTS: No I don’t think the time has come. And just phrasing the question – the time as come – suggests there’s some sort of inevitability to the direction.

(He does not sound very open to the idea any more.)

ROBERTS: We have taken a lot of steps to make the court more accessible. You get the audio recordings. It used to take – they weren’t available for a long time. Now they’re available fairly quickly afterwards. The transcripts are available immediately.

(This is true. The pandemic led to even more change; audio is now streamed live. But some transparency is not full transparency.)

ROBERTS: But, you know, the television changes a lot, and I ask people which public institution has been improved by being televised. Some of the senators mentioned to me early on in my tenure that they thought televising proceedings in the Senate they though had a deleterious effect. Said they used to actually do things on the Senate floor and now they don’t. I mean, you all can go and it’s nice to be able to see one senator standing up and speaking, but it’s usually to an empty chamber. And again, I don’t know what institution has been improved by being televised. I know a lot that have been harmed by it. And my judgment is that it has the potential of hurting the court.

(It’s not clear what senators told Roberts in private early in his career. He doesn’t mention Specter, who died in 2012, advocating very loudly for cameras in the court over the course of years. That senators have had to retreat behind closed doors to have private conversations does not seem like a compelling reason. There are also genuine moments that Americans should witness. John McCain’s “no” vote on repealing Obamacare, Chris Murphy’s guns speech after the Texas school shooting, Mitt Romney’s impeachment speech, John Boehner’s Obamacare speech – to say nothing of the many moments of accountability at congressional hearings – at least make it an argument about whether cameras have improved access to the place. They have.)

ROBERTS: Just the number of spectators we have in the courtroom, you worry about counsel kind of playing to the audience and, I have to be honest, worry about the justices doing that. And you don’t want that.

(Counterargument: Who cares about showboating? These people are lawyers. Americans should be able to see the judges making momentous decisions for them.)

ROBERTS: And in general – we’re a very cautious institution. I think our process for hearing and adjudicating cases is working very well, and I think changing something as dramatically as televising the proceedings I think would be harmful and I do worry.

(Since Roberts made these comments, confidence in the court has dropped quite a bit. Many people don’t think the process is working very well.)

ROBERTS: I mean, if you’ve been to our arguments, as I was saying, it is really a boom, boom, boom type of an affair and I don’t want to have to think, OK, how would that sound to the however many people watching at home. Are they going to understand the dynamic of what it’s like. And, um, particularly if you got soundbites plucked out and you don’t realize, you know, he wasn’t saying this, that was a hypothetical…

(Maybe people can’t keep up. Or maybe you’re underestimating them. And there will certainly be soundbites. There are already audio soundbites. And reporters who splice up your comments just like I’m doing right now. But there would also be a full video that anyone can watch.)

ROBERTS: It’s not as if we’re doing this in secret. We’re the most transparent branch in government in terms of seeing us do our work and us explaining what we’re doing, but I do think there’s a potential for it to alter the argument process. I don’t want to have to think about, ‘Well, what’s that going to sound like?’ and then the question is gone and the moment is lost.

(Justices have a lifetime appointment, a lifetime pension and a place in the history books. They might just have to deal with thinking about what you say.)

ROBERTS: I’ve said this before and it’s kind of facetious, but only kind of, you know, you’re the ABC automotive company, and you’re in a Title 7 suit for discrimination and, you know, employment. Their laywer, if it’s going to be viewed by however many millions of people, is going to get up and start some speech about how the ABC company would never discriminate against anybody and, you know, blah blah blah, and they have this great record and meanwhile, there’s this very little technical legal issue that they’re probably figuring, well, you know, the court will get it right and I need – it’s more important for me to communicate in some sort of PR way and, you know, besides, our new sports coupe gets 28 miles per gallon. I don’t know what it is they’re going to do with it.

(Sure. It’s a risk. But it also seems like plugging the 28 MPG coupe is theoretically less important during arguments than arguing the point that has them making arguments at the Supreme Court.)

ROBERTS: The court room is a very special place. It is. And maybe part of what makes it special is you don’t see it on television. And anyway, tentatively I’m against it.

(He says tentatively, but we also know from Kagan in 2019 that they haven’t discussed the issue as a group in the years she was on the court to that time. We also know what the special place looks like inside – activists snuck video in 2014. I’m willing to bet only the most important cases find their way onto TV screens.)

ALITO: I recognize that most people think that our arguments should be televised. Most of the members of my family think that arguments should be televised. I used to think that they should be televised.

(And yet…)

ALITO: When I got to the Supreme Court, I saw things differently and it wasn’t because I was indoctrinated or pressured by my colleagues, but I came to see and I do believe that allowing the arguments to be televised would undermine their value to us as a step in decision-making process. Lawyers would find it irresistible to try to put in a little soundbite in the hope of being that evening on CNN or Fox or MSNBC or one of the broadcast networks and that would detract from the value of the arguments in the decision-making process.

(The danger of soundbites is a theme here. Their fear of soundbites is real.)

ALITO: I recognize times change and I don’t know what our successors will think years from now or even next year. … Although we want as much access as possible, but we don’t want access at the expense of damaging the decision-making process.

(There are a lot of people who’d love to have a little more insight into the decision-making behind Alito’s opinion overturning Roe v. Wade. A lot would argue that opinion shows the decision-making process is already flawed.)

KAGAN: I think more than just transparency for transparency’s sake, the good of having cameras would be that people can see an institution at work, which I think does its work pretty well. … (Here Kagan explains that as solicitor general, she watched nearly all oral arguments.) … I was constantly impressed with how the court went about its business. It was thoughtful and it was probing and it was obvious that the justices really wanted to get things right. It’s no small benefit if the American public were able to see that because faith in institutions of governance is a very important thing and for me the greatest positive of having cameras would be that it would allow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers all of us together.

(Yes. People would very much like to see that.)

KAGAN: But having said that, I will wholeheartedly agree with Justice Alito that the most important thing is that the institution continue to function in that way, not that people see it. If the seeing it came at the expense of the way the institution functioned, that would be a very bad bargain. I do worry that cameras might come at that expense.

(Counter: If people don’t believe it is functioning thoughtfully and deliberately, is it actually functioning in that way?)

KAGAN: There’s a principle of physics, I think, which is about how when you put the observer – when the observer comes in, the observed thing changes. And you come into the Congress and if you all were given truth serum, I think some of you might agree that hearings change when the cameras are there. I have to say that they might change in the court in subtle ways. I don’t think all that many people would grandstand. I hope that my colleagues and I would not do that. I think we would filter ourselves in ways that would be unfortunate. The first time you see something on the evening news which, taken out of context, suggests something that you never meant to suggest. Suggests that you have an opinion on some issue that you in fact don’t have.

(The only thing that’s constant is change. That’s another principle of physics, or maybe philosophy.)

KAGAN: When I come into the courtroom, I play devil’s advocate. I probe both sides hard, and I challenge people in ways that might sound as though I have views on things that I in fact do not. Just because that’s the best way of really understanding the pros and cons of a case. I worry that that kind of questioning, that we all find very conducive to good decision making would be damaged if there were cameras.

(It’s a valid point. But again, the record would exist and a false representation could be called out.)