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Camera Shy: The Supreme Court’s Unconvincing Case Against Transparency

Supreme Court building in Washington, DC

On March 10th, Congress began celebrating Sunshine Week, an informal celebration of government transparency led by the American Society of News Editors. As part of the festivities, legislators authored a suite of bills and resolutions intended to improve accessibility and to open up the federal government to the public. By highlighting the relatively mundane and oft-ignored field of government transparency, previous Sunshine Weeks have succeeded in securing incremental but significant reforms such as improved FOIA access.

As expected, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) reintroduced the Cameras in the Courtroom Act for the fifth consecutive legislative session. The bill, which would require the Supreme Court to televise its proceedings, would serve as a major departure from established practice; currently, even photography is strictly forbidden when the justices are in court. Grassley has argued that it is a necessary innovation, bringing “transparency… educational opportunities… [and] respect for the judicial branch and in turn greater respect for the rule of law.” Nearly two-thirds of voters agree. Moreover, in light of the public’s declining faith in the Supreme Court, the bipartisan bill appears to be a rational step towards restoring the reputation of an institution scarred by contentious and nakedly partisan confirmation battles.

However, a small coterie with a significant interest in the legislation has continually thwarted its passage: the justices of the Supreme Court. If allowed to vote on the legislation themselves, the justices would likely render a unanimous 9-0 decision against the taping of court proceedings. While nearly every justice offered at least tepid support of video during their respective confirmation hearings, they have all since reneged on any initial consideration.

The bench has defended their opposition along several lines and with the same ardor found in their written opinions. According to Justice Sonia Sotomayor, cameras create the “temptation to use it as a stage rather than a courtroom.” In characteristic fashion, the late Justice Antonin Scalia explained that the Supreme Court should not be televised for the same reason the Chicago Law Review is not sold at 7-Eleven: The audience would not be able to comprehend the material. Even the notoriously quiet Justice Clarence Thomas has been particularly vocal about his disdain for cameras, stating that “it runs the risk of undermining the manner in which we consider the cases.”

Overall, these quotations encapsulate the three primary arguments that the justices have used to explain their reasoning. On their face, they all appear to be reasonable reservations, especially considering that they spring from the nation’s preeminent legal minds. Moreover, the justices’ opinions regarding their own institution should hold significant weight. The bench, however, has erred in judgement before, and the question of cameras in the courtroom is another case in which the Supreme Court’s majority opinion fails to survive close analysis. Contrary to the justices’ claims, televising courtroom proceedings has the potential to improve public understanding of the judicial branch and enhance government transparency, with little risk of institutional or procedural damage.

One of the justices’ preferred arguments revolves around the presumption that lawyers and justices will use their newfound exposure to grandstand or make politically charged speeches. Indeed, the introduction of C-SPAN to Congress in 1979 serves as historical precedent: Former Senator Newt Gingrich likened C-SPAN to the “Twitter of the 90s,” going so far as to claim that the modern-day conservative movement would not have emerged without it. However, as several of the justices have been quick to remind the public, the Supreme Court is an entirely different institution than Congress. While the members of Congress regularly face reelection and generally benefit from increased exposure, the justices are life-tenured and strive to avoid attracting unwanted attention to the ostensibly nonpartisan court. Similarly, it would hardly be in a lawyer’s best interest to pontificate to a national audience. Arguing a case before the Supreme Court is a prestigious and lucrative opportunity reserved for the most highly regarded attorneys in the legal profession; risking a prominent career to make snide remarks in front of the court is illogical.

Furthermore, these behavioral assumptions are more than theoretical. After former Chief Justice William Rehnquist ordered a limited test run for cameras in the lower courts during the early 1990s, a subsequent study found that there was a “small or no effect of camera presence on participants [including justices and lawyers] in the proceeding, courtroom decorum, or the administration of justice.”

"Contrary to the justices’ claims, televising courtroom proceedings has the potential to improve public understanding of the judicial branch and enhance government transparency, with little risk of institutional or procedural damage."

Justice Scalia’s suggestion that the general public lacks the knowledge to adequately comprehend oral arguments is another defense that initially seems persuasive. A paltry 47 percent of Americans can even name a single court case, let alone parse the confusing legalese or idiosyncrasies of the court. However, since access to court proceedings is currently limited to delayed audiotapes and lengthy decisions, the bench shares blame with the citizenry for poor public awareness. According to a University of Iowa experiment, people are much more likely to remember and understand information that is presented to them visually. In fact, Justice Elena Kagan has indirectly alluded to this phenomenon, stating that “reading about [the case] is not the same experience as actually seeing.” While Justice Scalia is correct that viewers may initially struggle to comprehend the court’s proceedings, his insinuation that this makes them incapable of ever understanding it is the type of logical fallacy he would have eviscerated from the bench.

Additionally, a dearth of public understanding is hardly equivalent to an unwillingness to learn. Congressional committee meetings contain similarly esoteric material and language, but, regardless, about 50 million distinct viewers tune into C-SPAN each month. Although Americans may be underinformed, they are, more importantly, interested: In the hours immediately following the Supreme Court’s NFIB v. Sebelius decision in 2012, SCOTUSblog received 5.3 million unique hits. Thus, televising the Supreme Court figures to be a democratizing measure that can further harness the public’s already piqued interest.

The most commonly levied argument by the justices, however, is the assertion that cameras would undermine their careful lines of questioning during oral arguments. Instead of focusing on “gavel-to-gavel” coverage to provide viewers with a holistic understanding of a given case, justices fear that the media would cherry-pick unrepresentative sound bites. While this conclusion is logical on its face, the inherent complexity of oral arguments serves as a safeguard. The justices tend to ask winding, multi-part questions that often take minutes to fully articulate. In contrast, the average news sound bite is only nine seconds. Consequently, media outlets would struggle to find any snippet of dialogue that was comprehensible, let alone inflammatory. Nonetheless, justices have contended that increased scrutiny would force them to tread carefully and avoid incisive questions that could be construed as controversial. The suggestion that the nation’s brightest legal scholars could be browbeat into a different line of questioning by unfavorable media coverage lies on a particularly slippery slope, especially considering that at least one justice does not even know how to turn on their TV.

In 1914, eventual Supreme Court Justice Louis Brandeis speculated that “sunlight is said to be the best of disinfectants.” More than a hundred years later, his advice seems to have fallen on deaf ears. While the judiciary is an institution generally committed to stability, cameras in the court is a timely and much-needed innovation to the legal system. With institutional faith in the Supreme Court nearing a historic low, the Cameras in the Courtroom Act is an opportunity to restore transparency and accessibility. Most importantly, it might be one of the last chances to shed some light before it gets too dark.

Photo: “Supreme Court

About the Author

Luke Angelillo '21 is a Staff Writer for the Economics Section of the Brown Political Review. Luke can be reached at luke_angelillo@brown.edu

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