Would Cameras Turn the Supreme Court Into a Circus?

C-SPAN was supposed to usher in an era of greater transparency and accountability on Capitol Hill. Look how that turned out.

WASHINGTON, DC - JUNE 28: Obamacare supporters and protesters gather in front of the U.S. Supreme Court to find out the ruling on the Affordable Health Act June 28, 2012 in front of the U.S. Supreme Court in Washington, DC. The Supreme Court has upheld the whole healthcare law of the Obama Administration. (Photo by Alex Wong/Getty Images)
National Journal
Dustin Volz
Feb. 20, 2014, midnight

Trans­par­ency trumps tra­di­tion.

That’s the mes­sage of a newly christened co­hort of me­dia and leg­al groups that are de­mand­ing the Su­preme Court tele­vise its pro­ceed­ings.

“The Su­preme Court’s de­cisions im­pact the lives of Amer­ic­ans every­where,” the Co­ali­tion for Court Trans­par­ency warns in a new 30-second tele­vi­sion ad that the group says will run about 300 times in the Wash­ing­ton metro area on cable news chan­nels. “But only a priv­ileged few get to wit­ness his­tory and see justice in ac­tion.”

Those “priv­ileged few” add up to about 250 people who are al­lowed in­to the courtroom dur­ing of­fi­cial pro­ceed­ings. Get­ting a tick­et to watch a high-pro­file case is com­par­able to pur­chas­ing a new iPhone mod­el on re­lease day, and people have been known to wait in line for days to catch the ju­di­cial branch’s greatest dis­play of demo­cracy in ac­tion.

Lack­ing entry in­to the justices’ ex­clus­ive quar­ters, most Court-watch­ers must wait hours be­fore a tran­script be­comes avail­able or, worse, days for au­dio re­cord­ings of or­al ar­gu­ments are pos­ted on­line. (Hot-but­ton cases, such as the 2012 re­view of the Af­ford­able Care Act, are in­cen­di­ary enough to war­rant same-day au­dio re­leases.)

So, what’s stop­ping the na­tion’s highest court from get­ting with the times?

Noth­ing oth­er than the justices’ own un­will­ing­ness, the co­ali­tion says, ar­guing that the Court could ad­opt cam­er­as the mo­ment it wanted to.

Some see a big­ger threat: Fo­cus­ing cam­er­as on the Su­preme Court will mean that the Su­preme Court plays to the cam­era, chan­ging the ten­or of the na­tion’s highest-stakes ju­di­cial de­lib­er­a­tions.

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The Su­premes are “wor­ried that if you put cam­er­as in there, every­body will start play­ing to the cam­er­as,” Justice Elena Kagan ad­mit­ted in 2011i. And Justice Ant­on­in Scalia told C-SPAN in 2012:

I am against [cam­er­as in the Court] be­cause I do not be­lieve, as the pro­ponents of tele­vi­sion in the Court as­sert, that the pur­pose of tele­vis­ing our hear­ings would be to edu­cate the Amer­ic­an people.”¦ Your out­fit would carry it all, to be sure, but what most of Amer­ic­ans would see would be 30-second, 15-second takeouts from our ar­gu­ment, and those would not be char­ac­ter­ist­ic of what we do, they would be un­char­ac­ter­ist­ic.

Oth­er justices have like­wise ex­pressed doubt about cam­er­as’ place on their turf.

And, all things con­sidered, the Su­preme Court is do­ing a re­l­at­ively de­cent job of ad­ju­dic­at­ing, if opin­ion polling is any in­dic­a­tion. Al­though ap­prov­al has fallen migh­tily in the past few years, from 61 per­cent in 2009 to 46 per­cent now, ac­cord­ing to Gal­lup track­ing, the Court is still wildly more pop­u­lar than Con­gress, whose ap­prov­al rat­ing dropped down to single di­gits last year.

The sour views of Con­gress per­sists des­pite gavel-to-gavel cov­er­age of the Cap­it­ol’s daily pro­ceed­ings, cour­tesy of the Cable-Satel­lite Pub­lic Af­fairs Net­work, which fans and de­tract­ors alike know bet­ter as C-SPAN. The tele­vi­sion chan­nel was cre­ated in 1979 as a pub­lic ser­vice by the cable in­dustry, but some won­der wheth­er hav­ing cam­er­as on 24/7 has con­trib­uted to polit­ic­al dis­cord.

“After C-SPAN went on the air, in 1979, the cozy at­mo­sphere that en­cour­aged both de­lib­er­a­tion and back­room deals began to yield to trans­par­ency and, with it, pos­tur­ing,” George Pack­er wrote in a 2010 New York­er es­say ex­plor­ing the many mal­func­tions of the Sen­ate.

Polit­ic­al theat­er has al­ways ex­is­ted in Con­gress, but it’s hard to ima­gine that Sen. Ted Cruz would have waged a 21-hour fake fili­buster ahead of Oc­to­ber’s gov­ern­ment shut­down had the cam­er­as lights not been on.

Un­ques­tion­ably, the Su­preme Court has as­sumed heightened cul­tur­al in­terest in re­cent years, as land­mark rul­ings on cam­paign fin­ance, health care re­form, vot­ing rights, im­mig­ra­tion, and gay mar­riage cap­tiv­ated mil­lions of people who, lack­ing any bet­ter op­tion, mostly turned to SCOTUS­b­log (or re­lied on some­times in­ac­cur­ate cable news re­port­ing) to learn about a de­cision.

And oth­er courts are warm­ing to the di­git­al world. The U.S. Court of Ap­peals for the 9th Cir­cuit began al­low­ing live au­dio stream­ing of its pro­ceed­ings this year, after be­com­ing the first fed­er­al Ap­pel­late Court to provide live video cov­er­age of or­al ar­gu­ments.

As the co­ali­tion notes, all 50 state su­preme courts al­low elec­tron­ic re­cord­ing equip­ment to dif­fer­ing de­grees, and the Ju­di­cial Con­fer­ence of the United States has put cam­er­as in 14 fed­er­al courts as part of a “three-year, mul­tidistrict pi­lot pro­gram to study the ef­fect of broad­cast­ing fed­er­al court pro­ceed­ings.”

But al­though watch­ing clips of Justice Scalia com­par­ing broc­coli to the na­tion’s health care mar­ket or ac­cus­ing his col­leagues of deem­ing gay-mar­riage op­pon­ents “en­emies of the hu­man race” might sound like an ob­vi­ous so­ci­et­al gain, pro-cam­era ad­voc­ates face an up­hill battle. The highest court is no­tori­ous for drag­ging its feet when it comes to chan­ging its pro­tocol, and the justices ap­pear to en­joy per­petu­at­ing the an­ti­quated rel­ics of benches past.

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