The Weakness of the Case for Cameras in the United States Supreme Court

• Publication year: 2022

48 Creighton L. Rev. 167. THE WEAKNESS OF THE CASE FOR CAMERAS IN THE UNITED STATES SUPREME COURT

THE WEAKNESS OF THE CASE FOR CAMERAS IN THE UNITED STATES SUPREME COURT

JONATHAN R. BRUNO(fn*)

ABSTRACT ................................................ 167

I. INTRODUCTION ................................... 168

II. TRANSPARENCY AT THE SUPREME COURT ..... 169

III. THE CASE FOR CAMERAS ........................ 177

A. Cameras Would Educate the Public About the Court ........................................... 177

B. Cameras Would Make the Court Accountable . . . . 179

C. Cameras Are Required by the Principle of Transparency ................................... 182

D. Cameras Would Improve (Or at Least Not Undermine) the Court's Legitimacy .............. 187

E. The Court Is Already Committed to Cameras . . . . 192

F. Video Is the Medium of the 21st Century ........ 194

IV. DISSENTING VIEWS .............................. 197

A. The Weakest Objections ......................... 197

B. Some More Plausible Arguments Against Cameras ........................................ 199

C. Considerations on the 'Video Differential' ........ 204

V. CONCLUSION ..................................... 210

ABSTRACT

Many people regard it as obvious that Supreme Court proceedings should be open to video camera, and should be broadcast live on television and online. After all, the activities of Congress and the President are routinely publicized in this way, as are the proceedings of many state and lower federal courts. The benefits of such broadcasting seem manifest, and by stubbornly resisting this trend the Supreme Court apparently runs afoul of the basic demands of democratic transparency. In this Article, I show that these familiar positions are very difficult to sustain. On close inspection, all of the common arguments for cameras in the Supreme Court fail to persuade, either because they rest on speculative empirical premises or because they extrapolate unconvincingly from generic propositions about government openness. Not only is video not required by our commitment to transparency, I argue, but there are no reasonable grounds for confidence that it would promote any of the goods claimed in its name, including public understanding, accountability, and legitimacy. In fact, there are affirmative reasons to doubt that video, at least as ordinarily experienced in our present social context, would improve the public's understanding of the Court and its process. In short, the case for cameras in the Supreme Court turns out to be surprisingly weak. My analysis suggests that, at least for now, Congress should defer to the Court's prudential judgment on this issue and that the Justices are right to regard video skeptically. Nevertheless, I conclude by explaining why the Court may eventually find itself with compelling reasons to reverse that judgment and to embrace cameras.

I. INTRODUCTION

"[T]he trajectory is that it is inevitable that television will be in the Supreme Court . . . ."(fn1)

-Tom Goldstein, founder of SCOTUSblog

Mr. Goldstein's assessment is very likely correct. In the long run, it is hard to imagine a public institution as prominent as the United States Supreme Court remaining exempt from the expectations of a public so thoroughly immersed in the medium of digital video. But what is inevitable is not necessarily justifiable. Despite the momentum behind proposals to video record and broadcast Supreme Court proceedings, the arguments advanced on behalf of such proposals turn out to be remarkably weak. This Article offers a critical perspective on those arguments,(fn2) as well as on the various objections that have been advanced against cameras thus far.(fn3) It adds what I take to be weightier (though not incontestable) considerations against video broadcasting Supreme Court proceedings.(fn4) The Article concludes by considering where the debate now stands.(fn5) I argue, in short, that the case for cameras in the Court is uncertain at best, and that Congress should defer to the Court's judgment. Although in my view the Justices are correct to resist cameras at this juncture, I end by identifying one reason why prudence may ultimately require reversing that judgment.

II. TRANSPARENCY AT THE SUPREME COURT

Today's Supreme Court is a very transparent institution. The rules and practices that govern its conduct are matters of public record.(fn6) Its membership(fn7) and the Justices' votes on most decisions in cases heard(fn8) are publicized. Records of those decisions-as well as dispositions of petitions for certiorari and requests for injunctions, stays, and other forms of interim relief-are always public.(fn9) Moreover, judgments are ordinarily issued with public, written opinions setting forth a legal basis for the Court's decision.(fn10) When the Court is not unanimous in its ruling or in its reasoning, one or more concurring or dissenting opinions are also issued.(fn11) At its best, this practice effectively publicizes reasoned explanations (and critiques) of nearly every judgment rendered by the Court. Finally, at least a portion of the panel's decision process is public. Merit briefs filed by the parties (and by amici curiae) are collected and published online.(fn12) Oral arguments are also made public by several means. For example, a limited number of seats-generally between two and three hundred-are made available to live attendees.(fn13) In addition, transcripts and audio recordings are published on the Court's website shortly after oral arguments conclude.(fn14)

Of course, the Court is not wholly transparent. As we just noted, some of its decisions are issued with per curiam opinions to which no individual Justices' names are attached.(fn15) Many others are issued with opinions that may sometimes strike commentators as insincere or intellectually dishonest.(fn16) And, more rarely, judgments can be rendered without any reasoned opinion at all.(fn17) Moreover, not all of the Court's proceedings are public. For example, its internal, pre-judgment deliberations are strictly confidential.(fn18) And, of course, even its public proceedings are presently off-limits to video cameras.(fn19)

Whether or not the Court is wholly transparent may not be the right question, however. Complete transparency would not be entirely salutary, at least in this context; it would mean, among other things, the rejection of all forms of confidentiality in the Court's operations. Rather, it seems that exactly how much, and what kinds, of judicial transparency we should seek to promote is a matter for reasoned deliberation. In any event, it cannot be denied that today's Supreme Court is meaningfully transparent along a number of important dimensions. It is arguably among the most transparent institutions of government in the contemporary United States.(fn20)

To understand the context of recent calls for the cameras in the Court, a bit of history is instructive. I focus mainly on the Court's oral arguments, which have been the main target of camera proponents. Since the Supreme Court's beginning, oral arguments have ordinarily been open to the public in the literal sense that observers were permitted to be physically present in the chamber, subject to the limitations of space.(fn21) Prior to 1849, arguments were unrestricted in time and sometimes attracted large numbers of spectators.(fn22) Nevertheless, reporting of the proceedings was limited and inconsistent.(fn23) While records of oral arguments were in principle available through the Court's courtroom reporter, it was not until the twenty-first century that transcripts of these proceedings were made easily accessible. Since the Court first published a website on April 17, 2000, transcripts have been made available online shortly after oral argument days.(fn24) Not until the October 2004 term, however, did these transcripts begin identifying individual Justices by name.(fn25)

If the Court seemed eager to make available written transcripts of its oral arguments, its attitude toward audio and video has been decidedly more tepid.(fn26) In 1955, the Court began audio recording oral arguments and sending those recordings to the National Archives at the end of each term.(fn27) It is clear, however, that the Justices did not feel sanguine about the broadcasting of these recordings. When the CBS television network did just that in 1971, airing clips from that year's oral arguments in the Pentagon Papers case,(fn28) the Court ceased submitting audio to the National Archives altogether.(fn29) The practice was not resumed until 1986-and with a new restriction.(fn30) Thenceforth, any patron of the Archives seeking access to the Court's audio recordings would first need the Court's written permission and would have to sign a contract promising not to use the recordings for commercial purposes.(fn31) Just a few years later, the Court made waves by threatening to take legal action against a scholar who violated these terms, publishing several audio clips with a companion book for sale to the public.(fn32) Ultimately, the Court reversed course, instructing the National Archives in 1990 that its audio recordings could be consulted by anyone, "on a generally unrestricted basis."(fn33)

Of course, live or almost-live broadcasting of audio is another matter. Upon request by several media organizations, the Court allowed immediate access to its audio recording of oral arguments in Bush v. Gore(fn34) following the 2000...