When the Supreme Court hears the constitutional challenge to President Obama’s health care program, the American people will be watching. Well, make that: they should be watching, but they won’t be able to. We live in a media-saturated age, but the Supreme Court remains a camera-free zone.
C-SPAN wrote to the court last week asking for permission to televise the health care case. C-SPAN would air the arguments itself and make the video available to other media outlets. After many years of saying no to requests like this one, it is time for the Justices to say yes.
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Courtrooms have traditionally been open to the public. In small-town America, the courthouse stood in the middle of the town square and citizens dropped in to watch trials — both for entertainment and to keep an eye on how justice was being meted out. The Supreme Court has recognized a first amendment right to attend trials — and it has noted that having the public there actually improves the proceedings. Judges, juries, and witnesses — like most people — generally behave better when they are being watched. The public’s right to be in court, however, does not always include the right to bring a camera. Many courts do allow cameras — that was how the O.J. Simpson murder trial ended up on television. But many more do not.
The Supreme Court has a complete ban on cameras — and as calls have grown for a change in the policy, the Justices have dug in their heels. Chief Justice John Roberts has said that “We don’t have oral arguments to show people, the public, how we function.” Justice David Souter, who retired in 2009, once told Congress that there would be a camera in the court “over my dead body.”
There is an obvious argument for allowing television into the Supreme Court. It would let members of the public see firsthand what the issues are and how the Justices approach them. Televised arguments would turn the American people into real participants in what occurs in the marbled halls of justice.
The case against cameras in the Supreme Court is a lot harder to figure out. At the trial level, judges worry that television coverage could intimidate witnesses — or cause them to mug for the cameras. But in the Supreme Court, there are no witnesses. Trial judges are concerned that media coverage could influence juries. But in the Supreme Court, there are no juries. The Justices who oppose cameras have not said much about what their objections are. Some court-watchers say members of the court seem most focused on preserving their anonymity — that is, they do not want to be recognized when they go out in public. But it is hard to take this concern seriously. In a democracy, people who take on positions of great power should expect to sacrifice their anonymity — and to be answerable to the people.
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The real reason Supreme Court Justices are queasy about cameras may be a simpler one: they are simply not used to being second-guessed. The Supreme Court is not only at the top of the judicial branch — it has the final say in disputes with the President or Congress. In other words, it is used to getting its way. This carries over into how the court runs its own business. A case in point: conflicts of interest. There is no procedure for forcing a Justice to recuse himself or herself from a case. It is entirely their own choice. When Justice Antonin Scalia declared that he could fairly decide a case involving Vice President Dick Cheney, even though he and the vice president had just gone duck hunting together, that ended the matter.
Television cameras would be a sudden jolt of accountability for a body that is not used to it. Cameras could capture members of the court making troubling statements — like Justice Sandra Day O’Connor’s notorious suggestion, at the Bush v. Gore argument, that Florida voters whose ballots were not counted had only themselves to blame. They could remind the public that Justice Clarence Thomas has not asked a question at an argument in years. They could even capture a Justice nodding off.
Cameras would allow the American people to keep a closer watch on what the Supreme Court is up to. That is why they seem like a bad idea to at least some of the Justices — and a great idea to those of us who must live under the rulings they hand down.