Just a matter of time? Video cameras at the United States Supreme Court and the state supreme courts.

• Author: Brown, Robert L.

1. INTRODUCTION

   The long-running debate over webcasting and broadcasting oral arguments in the Supreme Court of the United States has recently moved to the United States Senate. (1) As the material collected in this article suggests, all indications are that the Supreme Court will continue to drag its heels on the subject. In marked contrast, however, state supreme courts have blazed a significant technological trail with some twenty-one state supreme courts now offering live video webcasts of their oral arguments, and four additional states planning to do so in the immediate future. This article examines the reluctance of the United States Supreme Court to take the lead in this area, but it also highlights the considerable strides made by the state supreme courts that have assumed the mantle of leadership. (2)

2. BACKGROUND

   In March of 2006, we in Arkansas were presented with two seemingly disparate views on the subject of broadcasting oral arguments in the Supreme Court. There was, first, an opinion expressed by Justice Breyer that televising oral arguments in the Supreme Court was "almost inevitable." (3) Yet he saw pros and cons to such a development. It would be a "terrific education" in cases like the term-limit litigation that originated in Arkansas. (4) But the countervailing considerations, he pointed out, were the potential for opening the door to televising all criminal trials and for perpetuating the misconception that oral arguments actually decide cases on appeal, when in actuality they are only a "small part" of the appellate process. (5) He cautioned that the Court should "go slow" in this area so as to protect its institutional integrity. (6)

   Then, from Nina Totenberg, National Public Radio's legal correspondent, came a less encouraging statement. In an interview following a panel discussion at the Winthrop Rockefeller Center, she raised the chimera of justices transformed into celebrities, which would increase the number of security threats made against them. (7) More recently, she expressed a fear, first imparted to her, she says, by ABC commentator George Stephanopolous, that this most impressive institution--the Supreme Court of the United States--with its formalities and mystique, would be diminished if television cameras were allowed to intrude into its courtroom. (8) Presidents, she went on, might then be more inclined to select Supreme Court nominees based on their attractiveness to the public rather than on their legal acumen. (9)

   These statements prompted me to consider reviewing both the recent history of the debate over web-based or broadcast access to arguments at the United States Supreme Court and the experiences of state supreme courts that have entered the webcast or broadcast arena. The pages that follow are the result of that review.

3. THE UNITED STATES SUPREME COURT

   1. Inside the Court

      Despite the hopes of some--the media in particular--that a new Chief Justice would lead the Supreme Court into an age of televised oral arguments, this has not proven to be the case. Last year, the Chief Justice announced his disenchantment with such an innovation at the Ninth Circuit's annual Judicial Conference. (10) In his remarks on that occasion, he pointed out that educating the public is not the purpose of oral argument, but rather oral argument helps appellate judges "learn about a particular case in a particular way." (11) Still later, the Chief Justice voiced a hesitancy to "tinker" with the procedure for oral argument. (12) It is, he concluded, a "valuable tool" that has in its present form served the court well. (13) He did point out, however, that audio discs or tapes are made available by the court in certain cases and that the Court's experience with audio has been "generally good." (14)

      Other justices on the Court have been even more caustic about video recording of oral arguments. Justice Souter, in his now famous remark, offered that "the day you see a [television] camera come into our courtroom, it's going to roll over my dead body," (15) and Justice Scalia has mused that video recordings made during oral argument would "miseducate and misinform," (16) and he has also noted that the Justices "don't want to become entertainment." (17) Justice Thomas echoed those misgivings during a recent visit to the Arkansas Supreme Court. (18)

      Still other members of the Court, like Justices Stevens and Alito, appear to be more receptive to the prospect of televised proceedings. (19) It falls, however, to Justice Ruth Bader Ginsberg to summarize the current state of affairs:

      Right now, the view is that our proceedings should not be televised. That may change based on the experience of state supreme courts. Several of our states are experimenting with televised trials. Televised appeals. And if it works, in time it will spread, and if it doesn't, then it won't.... Our courtroom is generally packed, sometimes there are long lines to get in ... and this would be another way of opening the court further. (20) Public sentiment agrees with Justice Ginsberg. In late 2006, the Congressional Research Service issued a report that listed these same arguments for and against televising Supreme Court arguments. (21) Importantly, the CRS Report alluded to a public survey in April of 2006, which found that seventy percent of those polled thought televising Supreme Court oral arguments was a good idea. (22) This approval percentage had risen twenty points in five years, the Report said, possibly due to increasing support for more transparency in government, the Court's recent issuance of controversial decisions, and the public's expectation that future Supreme Court cases were likely to involve constitutional issues of great public interest. (23)

      Whatever might motivate public sentiment, Justice Breyer is undoubtedly correct: Videotaping of the Court's oral arguments is probably inevitable. More and more, we see Supreme Court justices eschewing anonymity and stepping into the light of day. For example, some justices now publicly engage in debates over judicial philosophy, and some write books that yield insights into their judicial development. (24) Certainly, the unknown Supreme Court Justice is less the norm today than in the past. And two federal courts of appeal, the Second Circuit and the Ninth, have opted to allow their oral arguments to be televised by entities like CNN and C-Span after the Judicial Conference of the United States made it discretionary for appellate courts to do so in 1996. (25)

   2. Outside the Court

      No less an old-line institution than the American Bar Association states that it is "committed to the belief that all federal courts, including the Supreme Court, should experiment with electronic media coverage of both civil and criminal proceedings." (26) But the most significant development on this issue in the last few years has occurred in the United States Senate. In January of this year, Senator Specter of Pennsylvania and five co-sponsors introduced legislation mandating that the Supreme Court televise its oral arguments. (27) Senator Specter said at the time that he championed the increased public understanding and better access to Court proceedings that would result from his bill's becoming law. The focus on the Court that live television would bring, he said, might result in the Court's taking more than eighty-seven cases a year, which he maintains was the number of cases taken in the 2005 term, when only sixty-nine opinions were actually signed that year by the justices. He also speculated that it might go a long...