Health care case adds pressure for cameras in Supreme Court

WASHINGTON -- Now that the Supreme Court has agreed to hear a dispute over the federal health care law, the justices are facing the strongest challenge to their ban on televised hearings.

Members of Congress and news industry leaders have asked the court to allow the televising of oral arguments, to be held over five and a half hours during two days in March.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the justices should allow cameras for those arguments. Several polls in the past decade have shown majority support for televising the court's arguments, in general.

The pressure from Congress, which included a Senate hearing last week on legislation that would require the televising of most arguments, and from outside interests following the health care case, could present a turning point in breaking down justices' resistance to cameras.

"I can't think of another case in recent years, except Bush v. Gore, that has generated so much public interest," says Sally Rider, former administrative assistant to Chief Justices William Rehnquist and John Roberts and now a University of Arizona law professor, referring to the 2000 Florida election case. "Now that I'm away from the court," Rider added, "it's incredible how often I hear people talk about wanting to see oral arguments. When they find out they're not on TV, they are shocked." Yet Rider cautioned that the justices might think if they say yes to televising the health care controversy, they would be pressured to open other arguments.

"I think it's inevitable that we'll have cameras in the court. The question is when," says New York University law professor Barry Friedman, who studies the judiciary and public attitudes. "This case would be a wonderful, object lesson in the work of the court."

At the core of the health care overhaul signed by President Obama in March 2010 is a requirement that most Americans buy insurance by 2014 or face a tax penalty. The legislation also expands Medicaid eligibility and is intended, overall, to bring new health coverage to more than 30 million Americans. The day after the justices announced they would hear the constitutional challenges brought by 26 states and the National Federation of Independent Business, C-SPAN Chairman Brian Lamb wrote to Chief Justice Roberts asking that the cable company be allowed to televise the oral arguments.

"It is a case which will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign," Lamb said in his Nov. 15 letter.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., among the members of Congress who have long encouraged television in the courtroom, immediately endorsed the request.

In an interview, Lamb stressed the public-education value of televising arguments and noted that C-SPAN shows events in their entirety so that viewers get the full context.

Lamb acknowledged that a snippet of an oral argument could be aired elsewhere and ridiculed, as some of the justices, including Antonin Scalia, have said they fear. But, Lamb said, referring to Comedy Central's The Daily Show, "Jon Stewart already can make fun of them, and does."

The judiciary is the only branch of the federal government not subject to regular TV coverage. C-SPAN came to the House of Representatives in 1979, and the Senate in 1986. The administration regularly allows broadcast of briefings and presidential speeches.

The Supreme Court's marble-columned courtroom holds about 300 seats, many of which are typically allocated to lawyers in the Supreme Court bar and guests of the justices. Court officials try to reserve at least 50 seats for the public. In the past, for big cases, spectators have camped out for hours, and sometimes days, to get in.

When Sen. Amy Klobuchar, D-Minn., opened the Senate Judiciary Committee hearing on the legislation that would require televised hearings, she noted many people are not able to even make the trip to Washington to get in line for a seat. "It shouldn't be a once-in-a-lifetime experience to see the court in action," she said.

The new legislation, offered by lead sponsors Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, would force the court to televise arguments unless a majority of the nine justices believed it would violate the due process rights of one party in a case.

Among those testifying against it was Washington lawyer Maureen Mahoney, who has argued 21 cases at the court and who said she believed the proposal would violate the constitutional separation of powers.

"Congressional interference in the court's … proceedings would represent a sharp departure from historical practice that would raise serious constitutional questions," she said. Mahoney said she thought proponents of televising were overstating the benefits and underestimating the risks to the integrity of the court.

A separate proposal, endorsed by Leahy, would allow, but not require, the televising of all federal court hearings, at the discretion of a chief judge or chief justice. Leahy said that in appellate court settings, such as the Supreme Court, "it's the easiest thing in the world to set up stationary cameras unobtrusively. The same way we do in the Senate chamber, I don't think any one of us stops to think where the cameras are."

The justices have resisted television for many reasons, including how they think their own colleagues would handle it. At a legal conference last summer, Roberts said he was worried about the effect of cameras on lawyers and justices and potential "grandstanding."

Justice Anthony Kennedy separately has fretted that cameras "would change our collegial dynamic." Kennedy said he didn't want to think during oral arguments that a colleague was "trying to get a sound bite for the television."

Roberts and Kennedy have also cited the court's adherence to tradition and, as Roberts said, that judges "tend to move slowly." He noted that the turtle was a common architectural motif at the court.

Justice Stephen Breyer had said televising arguments could elevate their importance in the public eye. The justices do most of their work behind the scenes, drafting their opinions from written briefs, legal texts and past cases.

Some of the newer justices, however, testified at their Senate confirmation hearings that they would be receptive to television. "It would be a great thing for the court, and it would be a great thing for the American people," Elena Kagan told the Senate Judiciary Committee in 2010.

Justices Sonia Sotomayor in 2009 and Samuel Alito in 2006 also expressed openness to televising arguments.

Justice David Souter, who famously said cameras would be allowed only "over my dead body," retired in 2009.

The Supreme Court has yet to respond to the C-SPAN request, nor one from the Reporters Committee for Freedom of the Press, which has asked for video and audio coverage of the health care cases. Among the 46 media organizations that joined a Reporters Committee letter are ABC News, the New York Times, the Tribune Co., and Gannett, parent company of USA TODAY.

The court currently makes audiotapes of its arguments available at the end of each hearing week. The Reporters Committee for Freedom of the Press, which also wants televised coverage, has asked that audio be available on the day of the hearing, as the justices previously had allowed for some high-profile cases.

University of Arizona professor Rider, the former aide to chief justices, said the audio is valuable to people who cannot get into the courtroom, yet added, "As a teacher now, I think it would be great to have a class watch an argument. Listening to the audiotape is just a pale substitute."