Last spring, Chief Justice John Roberts compared the Supreme Court’s progress regarding a decision on cameras in the courtroom with the pace of a turtle. This was not a good sign for anyone hoping to see arguments broadcast any time soon.
“Those of you who have been to the court know that one of the architectural motifs on the base of our lamp posts throughout is a turtle,” Roberts told the audience. “And that’s to indicate that we move slowly but surely and on a stable basis.”
While noting that he is looking forward to the results of a pilot program in the lower courts regarding the impact of cameras in the courtroom, he said he has concerns at the Supreme Court level.
“We worry about the impact on lawyers,” he told the audience at a judicial conference. “I worry about the impact on judges.”
As things stand now, transcripts are available soon after the argument and the audio is released on the following Friday, but only a few can actually witness the proceedings.
“We, unfortunately, fall into grandstanding with a couple of hundred people in the courtroom,” Roberts said. “I’m a little concerned about what the impact would be.”
He added that the court is already the most transparent branch of government.
“Everything we do that has an impact,” he said, “is done in public.”
News organizations, including ABC News, have asked the court to open the doors for the first time in history this spring and allow cameras to record the five-and-a-half hours allotted for a challenge to the health care law.
In speeches and congressional appearances over the years, several justices have expressed concern about cameras in the court, although Justice Elena Kagan seems the most receptive to the idea.
In Aspen last summer, she described her days as solicitor general watching the court.
“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer” she said. “I thought, ‘If everybody could see this, it would make people feel so good about this branch of government.’”
She admitted that since taking the bench she has a better understanding of some of her colleague’s opposing positions.
“They are worried that if you put cameras in there, everybody will start playing to the cameras, ” she said.
Justice Antonin Scalia told to Congress in 2011 that when he first joined the court he was in favor of televising arguments. But, he added, “The longer I’ve been there, the less good idea I think it is.”
The last 25 years have taught him about the danger of a sound bite.
If people actually watched the entire argument, Scalia said, cameras would provide a learning experience for the American public.
But, he said, “For every 10 people who sat through our proceedings, gavel to gavel, there would be 10,000 who would see nothing but a 30-second take-out from one of the proceedings.”
Scalia said television wouldn’t add much.
“We just sit there like nine sticks on chairs,” he said. “I mean, there is not a whole lot of visual motion. It’s mostly intellectual motion.”
Congress has, at various times, attempted to pass legislation requiring cameras in the courtroom. That angered Justice Anthony Kennedy in 2008.
“Our dynamic works,” Kennedy said during an appearance before Congress. “The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect from time to time that one of my colleagues is saying something for a sound bite.
“Please don’t introduce that insidious dynamic into what is now a collegial court,” he said. “Our court works. We teach by having no cameras, that we are different. We are judged by what we write. We are judged over a much longer term. We are not judged by what we say.”
Justice Clarence Thomas told Congress in 2008 that his primary concern is that “regular appearances on TV would mean significant changes in the way my colleagues could conduct their lives. My anonymity is already gone.”
Presumably, he was referring to his controversial confirmation hearings that were broadcast in 1991.
“It’s already affected the way that I can conduct my own life, but for some of my colleagues, they have not yet lost that anonymity,” Thomas said.
Justice Stephen Breyer urges caution. He told Congress in 2011 during an appropriations subcommittee hearing on the budget that the “court has lasted and served the country well over a long period of time,” and that the justices serve as the court’s “trustees” who don’t want to make a decision that could hurt the court.
Justice Ruth Bader Ginsburg made light of the issue during a speech in July of 2011.
“Lawyers and law professors alike pay close attention to the questions justices pose at oral argument, ” she said, proceeding to highlight some of the more amusing and unusual questions from the bench.
“You may better understand why the court does not plan to permit televising oral arguments any time soon,” Ginsburg said.
When he served on a lower court, Justice Samuel Alito voted in favor of his court televising proceedings. But in his confirmation hearings, he suggested that there are different considerations for televising Supreme Court arguments.
Justice Sonia Sotomayor also dealt with the issue as a lower court judge. In her confirmation hearings, she said that she had had a “positive experience” with cameras.
Retired Justice John Paul Stevens no longer has to worry about the issue. But he told C-Span’s Brian Lamb recently he doesn’t see a change coming soon. “I wouldn’t hold my breath, that’s for sure,” Stevens said.
Stevens summed it up by saying, “On the one hand, televising the court would be good for the court and for the country, because I think people would realize that the justices are very thorough in their preparation for arguments and their understanding of the cases. They ask intelligent questions. People, I think, are generally favorably impressed when they see the court at work.
“But the other side of the coin is that television often has unexpected and unintended consequences,” he added. “You’re never 100 percent sure that might not cause a change in the procedure that would have an adverse effect on it.”