Whenever the U.S. Supreme Court hears oral arguments on a landmark case, you often get to listen to an audio recording of those arguments later that very same day, sometimes immediately following the conclusion of the hearing.
You can thank RTDNA for that.
In late 2000, it was then-RTNDA President Barbara Cochran who successfully compelled the Chief Justice of the United States, William Rehnquist, to release same-day audio recordings of the court’s oral arguments in the case that decided the outcome of that year’s presidential election. Rehnquist’s successor, Chief Justice John Roberts, has continued the practice.
But what eluded RTNDA then and continues to elude RTDNA and the American people to this day is live, on-camera coverage of Supreme Court hearings. That was Cochran’s original request in Bush v. Palm Beach County Canvassing Board. Rehnquist’s decision to allow almost contemporaneous audio coverage was likely seen by him and other justices as a compromise.
Nearly 18 years later, it is long past time for our nation’s highest court to lurch into the 21st Century and allow live televised coverage of all of its hearings and decision announcements. The cable consortium C-SPAN has indicated it is willing to do so, just as it does in Congress.
So what’s the hang up? For years, the late Associate Justice Antonin Scalia seemed to have led the charge against cameras in the Supreme Court. But even before his death in February 2016 we learned – nearly two years earlier – that he wasn’t the court’s only anti-cameras troglodyte.
As noted last year in Judicature, a publication of the Duke Law Center for Judicial Studies, senior Associate Justice Anthony Kennedy – a Republican-appointed jurist who often sides with the court’s liberal wing on some social issues – has also expressed reticence about subjecting the court’s public business to broader public scrutiny.
As authors Erwin Chermerinsky and Eric J. Segall document, Kennedy told a congressional committee in 2014:
We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give. We feel . . . that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because we were on television. I just don’t want that insidious dynamic to come between me and my colleagues.
“We teach by not having television there.”?
“I would have the instinct that one of my colleagues asked a question because we were on television. I just don’t want that insidious dynamic to come between me and my colleagues.”?
What is this, 1988? 1998?, when the circus atmosphere of the recently concluded O.J. Simpson trial prompted many anti-cameras-in-courtrooms advocates to say, See? I told you so!
As Chermerinsky – now dean of the University of California, Berkeley School of Law – and Segall – of the Georgia State University College of Law – continue:
Justice Kennedy’s two objections to cameras have little merit. First, the Court is much more than a “teaching institution.” It is a coercive government body handing down rules that bind our cities, states, Congress, the President, and the American people. We have a right to see how the Court conducts its public business. Moreover, to the extent the Court plays a “teaching” role, its oral arguments and decision announcements … are conducted politely and with respect, even where there are strong disagreements among the justices and the lawyers arguing the cases. Allowing millions of Americans, and people all over the world, to witness this dynamic in real time would provide excellent role modelling for our public debates in other fora.
If there is any cause for optimism, as insignificant to the Supreme Court as it might be, a new informal survey of nearly 800 judges from across the country, conducted for the National Judicial College in May 2018, shows that nearly 70% of those who responded favor cameras in the U.S. Supreme Court.
As careful as the College is to point out that the survey results “are not intended to be characterized as conclusive research findings,” they still send a very strong message: A large number of judges – not just journalists or journalism advocacy associations such as RTDNA – believe the public would be better served if it could actually see the U.S. Supreme Court live and in action.
The fact is that more than three-fifths of U.S. states allow for some form of live or archived video and audio coverage of at least some courtroom proceedings. At least one federal appeals court, and a handful of other federal courts, are experimenting with the idea.
It is high time for the nation’s highest court to join the modern age and allow live video and audio coverage of its hearings and decision announcements.
Or, as one of the pro-cameras judges who responded to the National Judicial College straw poll put it:
We already are in charge of maintaining order in the courtroom. Therefore, it should not be an issue. I say let the public in. What have we to hide?