Televising Supreme Court Proceedings

Mar 15, 2008 - 02:36 AM PST

TELEVISING SUPREME COURT PROCEEDINGS: PROGRESSING TOWARD SUNSHINE IN THE JUDICIAL BRANCH

Former Supreme Court Associate Justice Oliver Wendell Holmes once wrote, “It is desirable that the trial of causes should take place under the public eye… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Although the push for televising Supreme Court proceedings certainly was not at issue during Holmes’ tenure from 1902 to 1932, his theory that public scrutiny provides a strong assurance that justice is administered promptly and properly rings true even today. The Supreme Court’s long-standing refusal to allow television cameras in its courtroom is currently facing strong opposition by congressional members and media, and it may be only a matter of time before the nation’s most esteemed Court is forced to lift its veil of mystery.

On January 22, 2007, Pennsylvania Republican Senator Arlen Specter presented Senate Bill 344 (“S. 344”) for discussion and insertion into the Congressional record. S. 344 provides for an amendment to Chapter 45 to Title 28 of the U.S. Code as follows: “The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.” Specter proposed the legislation as a means to ensure that the American public receives the greatest possible access to the key issues before the Supreme Court’s and the process by which decisions are reached.

Despite the fact that the Supreme Court has the ability to make decisions that significantly impact the lives of Americans, few citizens possess even a basic knowledge of the Court’s members, function or purpose. A startling survey conducted for FindLaw.com in December 2005 revealed that 57 percent of Americans could not name any of the nine current Supreme Court justices. One reason for this widespread lack of knowledge is the Court’s institutional secrecy. Though oral arguments are open to the public, the courtroom’s limited seating restricts the size of the audience on any given day. Beyond their appearances for oral arguments, the justices have long been viewed as a private group of people, deliberating behind closed doors, and avoiding frequent public appearances. The obscurity afforded by this private life is highly valued by many of the justices. At a 1993 Colorado Springs conference, former Justice Byron White admitted that future members of the Court may one day wonder why the justices had been so resistant to televising court proceedings. Acknowledging the importance of anonymity, he stated, “I am very pleased to walk around, and very, very seldom am I recognized. It’s very selfish, I know.” Only recently have the Court’s members warmed up to the media spotlight.

Despite the Court’s resistance to television coverage of oral arguments, it has not been entirely opposed to the presence of media in the courtroom. Small numbers of Supreme Court correspondents and members of the media enjoy the privilege of sitting with the audience during court proceedings. The Court has allowed the delayed release of audio-recorded oral arguments, transcripts, case briefs and written opinions for quite some time via the Oyez website.

Listening to the oral arguments provides a terrific insight into the personalities, ideologies and temperaments of the nine justices. A regular listener soon develops the ability to distinguish one justice’s voice from another, and entertain predictions on the justice’s votes based on the questions they ask during oral arguments and their references to prior decisions in related cases. However, any clues into the justice’s individual characters that may be garnered by listening to audio recordings are somewhat overshadowed by an inability to view their facial expressions or to take in the courtroom environment. A large amount of man’s understanding of his surroundings is based on image perception, and the visual inaccessibility of the Supreme Court creates a tough barrier to a full comprehension of the judiciary’s inner workings. Specter promotes his legislation requiring the Court to televise proceedings as a means of tearing down that barrier. “Because the Supreme Court of the United States holds the power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual ‘super-legislature,’ the public has a right to know what the Supreme Court is doing.” However, Specter’s wishes for enhanced Supreme Court coverage have been met by a less-than-enthusiastic Court. In 1996, Justice David Souter, when asked about televising court proceedings, stated famously, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.” Opponents of televised Supreme Court proceedings cite potential for adverse effects on judicial proceedings, security and privacy concerns, possible misinterpretation of judicial operation and decisions, and separation of powers concerns as reasons against requiring cameras in the courtroom.

Opponents of televised court proceedings most often cite the media coverage’s potential for adverse effects on the integrity of judicial proceedings as an important reason for cameras to stay out of the courtroom. In Nebraska Press Association v. Stuart, 427 U.S. 539, 551 (1976), the Supreme Court itself commented on the fact that media coverage before and during a trial causes “tensions [to] develop between the right of the accused to trial by an impartial jury and the rights guaranteed to others by the First Amendment.” Concerns that televised coverage may intimidate participants, that due process violations may occur, or that lawyers and judges may ‘grandstand’ for the cameras underscore the need to exercise caution in forcing televised court proceedings. Justice Scalia conveyed his dislike for cameras in the courtroom in a 2005 interview, stating, “We don’t want to become entertainment. I think there’s something sick about making entertainment out of real people’s legal problems. I don’t like it in the lower courts, and I particularly don’t like it in the Supreme Court.” In 2006, Senator Jeff Sessions argued that because Supreme Court oral arguments consist only of one hour of fact and theory presentation by attorneys for each party, the concern that cameras might intimidate litigants does not correctly apply to the Supreme Court. “The Supreme Court obviously has begun to loosen up some. They have allowed their arguments to be taped and produced, but likewise have given [televised proceedings] consideration a number of times and have concluded that they do not wish their lawyers and the process to be a television show… I think the least detrimental [effects of televised coverage] would be [on] the Supreme Court, and the most detrimental… would be the trial courts.”
Another long-standing argument against televising Supreme Court proceedings arises out of concern with the security and privacy of the Justices. Speaking before the Senate in 2006, Justice Clarence Thomas noted that decreased anonymity could result in security issues for the Court. The judicial system has been on heightened alert in recent years as threats against judges and court officials have become more prevalent. In 2001, a package containing fatal anthrax spores was mailed to the Supreme Court building, forcing a two-week evacuation to prevent contamination. In 2005, a disgruntled litigant murdered a federal judge’s husband. Two weeks later, a shooting spree in an Atlanta, Georgia courtroom left a superior court judge, a court reporter and a sheriff’s deputy dead. Then, in the wake of the shootings, Supreme Court Marshal Pamela Talkin notified the Court of Internet postings calling for the assassination of Justices Ruth Bader Ginsburg and Sandra Day O’Conner. The theory that televised coverage of high-profile Supreme Court cases might result in greater opportunity for extremists to single out a particular Justice as the ‘cause’ of an unpopular decision is not unreasonable and should certainly be considered.

In addition to security issues, several Justices have expressed concern with the potential for televised proceedings resulting in misinterpretation of the manner in which the Court operates. Some, such as Anthony Kennedy, cite the possibility that viewers will only consider the oral arguments shown on television, and not the many hours of document review, precedent comparisons, writing and conference deliberations in which the justices engage prior to issuing a decision. Others, such as Antonin Scalia, worry that even if proceedings are televised in their entirety (‘gavel-to-gavel’), few viewers will watch the whole case unfold, and that media sound bites will result in more misinformation than education. The late Chief Justice William Rehnquist discussed the Court’s opinion on television coverage in a 2001 interview. “I think that… we are not interested in becoming media personalities. We kind of value what anonymity we have. And [televised proceedings won’t] convey the whole depth of the proceeding… there’s a feeling that it affects… the way the lawyers behave. And I suspect it may affect the way judges behave, too.” However worried they may be about misinterpretation of proceedings, justices also know that public compliance with their decisions is dependent upon the public’s comprehension of those decisions, and that understanding has been a factor in increased media coverage via audio recordings and transcripts up to this point.

Congressional mandate of televised Supreme Court proceedings would have a significant impact on the separation of powers between the three branches of government. The Supreme Court, established in 1790, is the only judicial body specifically recognized in the U.S. Constitution. All other lower courts have been created by the U.S. Congress or individual state legislatures over time in response to various judiciary needs. It is the Supreme Court’s unique positioning as a specific entity under the judicial branch that creates a curious relationship between it and the U.S. Congress. The Constitution states that the justices shall serve a life term, but Congress has the responsibility of legislating certain other aspects of the Court’s existence, such as the number of justices, justice salaries and specific dates for annual sessions. However, the method of operation and internal workings of the Court have largely been left up to the Court members themselves. Regarding proposed legislation requiring the Court to comply with televised proceedings in 2006, Justice Anthony Kennedy stated, “It is not for the court to tell Congress how to conduct its proceedings… We feel very strongly that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches.” Specter states that he feels the power to make a determination on whether courtroom proceedings should be televised is well within Congress’ rights, but that if the Supreme Court deems the Congressional push to mandate cameras in the courtroom as a violation of the separation of powers, then Congress will defer to the Court’s decision.

Despite the many factors behind opposition of televised coverage of Supreme Court proceedings, public opinion surveys indicate citizens’ support for televised court proceedings is increasing. A December 2005 Gallup telephone poll showed that 50% of Americans surveyed felt that the Supreme Court should allow cameras to record oral arguments. Another survey conducted just six years later in April 2006 showed that 70% of Americans thought it would be ‘a good idea’ to allow television coverage of U.S. Supreme Court sessions. The marked increase in public desire to view Supreme Court proceedings on television in recent years may be linked to several reasons, including a desire for access to judicial proceedings following controversy over some recent Supreme Court rulings, an increased expectation of transparency in government activity, and greater interest in constitutional decisions that affect the lives of Americans.

Though some of his more secretive contemporaries adamantly oppose cameras in the courtroom, Chief Justice John Roberts indicated that he was open to the idea of televised proceedings during his 2005 Senate confirmation hearings. Since then, he seems to have deferred to the wishes of his colleagues.

Following the Court’s 1976 decision in Nebraska Press Association v. Stuart, another case involving First Amendment rights and freedom of the press reached the bench. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), the Court held “the right to attend criminal trials is implicit in the guarantees of the First Amendment.” The Court suggested that open trials support free speech rights and encourage litigants’ rights to due process. Further, the Court in Richmond Newspapers, Inc. v. Virginia implied (but did not expressly state) that the constitutional right to attend criminal trials also extends to civil proceedings. One can assume, then, that if the right to attend criminal and civil trials applies to the general public, then that right should also extend to news media who seek to gather and broadcast information to members of the general public who are unable to personally attend a trial. It should be noted that not all citizens have the financial means or physical ability to travel to the Supreme Court to attend hearings, and those that are able to travel to the nation’s capital may find that the Court’s limited seating availability restricts them from viewing oral arguments on a given day. Said Senator Grassley at a November 2005 Senate hearing, “…we often talk about the Founding Fathers. I think allowing cameras in the Federal courtroom is absolutely consistent with their intent that trials be held in front of as many people as choose to attend.” Televising proceedings allows widespread, generalized access to the Court via the most oft-used source of information for most Americans.

Former Justice Louis Brandeis felt that an open government was more easily held accountable, and therefore, less often corrupted. His dictum that “sunlight is the best disinfectant,” formed the basis for important legislature such as the Freedom of Information Act and continues to be an invaluable theory on open government today. Many proponents of opening the courtroom to television cameras, including Senate supporters, C-SPAN and Court TV, argue that open government and transparency are of the utmost importance to American citizens, and that televised court proceedings will satisfy a need for open dissemination of information to the public.

Representative Ted Poe of Texas, a former Texas state judge and one of the first judges to allow video recording in his courtroom, spoke in favor of allowing cameras in the Supreme Court. “[T]he more open and public a trial, the more likely justice will occur. I find that cameras only enhance this concept.” In February 2007, National Press Club President Jerry Zremski announced its support for S. 344, stating, “Justice Louis Brandeis was among the first to remind us of the importance of sunshine in government. We believe now is the time for the Court to heed its own words – and apply the longstanding precept of open government to its own chamber.”

Congress is well aware of the effects of televising proceedings to the public. Non-profit television network C-SPAN has provided gavel-to-gavel coverage of all House of Representatives proceedings since 1979, and Senate proceedings have been open for gavel-to-gavel coverage (by C-SPAN2) since 1986. Other news outlets or television networks are permitted to relay the C-SPAN feeds or use clips of debates as desired. Both incarnations of C-SPAN run uninterrupted, unedited coverage free of additional commentary or analysis. This balanced, unbiased “insider’s look” at the workings of Congress is similar to what is being sought in coverage of the Supreme Court. Brian Lamb, founder and chairman of C-SPAN, promises that if granted access to the courtroom, C-SPAN will offer the same gavel-to-gavel coverage of Supreme Court proceedings (without interruptions, commentary or analysis) that is offered in both Congressional houses. While C-SPAN viewers do not have the opportunity to view every committee meeting or closed-door session, they do have the opportunity to view some of the most important policy-making sessions, and appreciate being granted the opportunity to do so.
Advocates of televising Supreme Court proceedings do empathize with potential security concerns, but note the increasing frequency in which Justices are appearing on television and in public. Chief Justice John Roberts recently participated in a PBS documentary on the Supreme Court. He and Justice John Paul Stevens also granted their first television interviews to legal correspondent Jan Crawford Greenburg of ABC News. Ruth Bader Ginsburg appeared on ‘CBS News with Mike Wallace’, and Justice Stephen Breyer was seen on ‘Fox News Sunday.’ Justice Breyer also participated in a lengthy televised debate with Justice Antonin Scalia in December 2006. The apparently increasing comfort of many of the Supreme Court’s members suggests that linking public recognition of the Justices with increased security concerns might no longer be a valid argument.

Beyond the obvious benefits of providing access to judicial proceedings and increasing the transparency of court operations, advocated of televised court proceedings maintain that the educational value that would be garnered from the ability to watch court proceedings in their entirety is essential to a through understanding of the way the Supreme Court works. Existing television coverage of Supreme Court news is weak, which is significant because the public garners most of their news from television sources. The rise of “infotainment” in network news broadcasts means that news value is often brushed aside in favor of entertainment value, underscoring the lack of focus on Supreme Court decisions. This trend in television journalism only serves to strengthen the argument for uninterrupted television coverage of the bench.

In the event televised proceedings were accepted by the Supreme Court or mandated by Congress, the provision allowing Justices to close proceedings when a majority of the Court deems coverage to be a violation of any litigant’s due process rights leaves a substantial degree of control in the hands of the Court. In addition, safeguards could be instituted to obscure the faces of litigants or other participants when necessary.

In 2005, former Supreme Court Justice Sandra Day O’ Conner made a statement regarding the positive impact of televised trials. Discussing a trial for election fraud in the Ukraine, she commented that because people were able to see the trial on television and watch as the court’s decision was made, they were satisfied with the process and the decision. O’Conner noted the situation as a turning point in for the young Ukrainian democracy. Is it possible, then, that opening proceedings of the nation’s highest court could be a turning point for America, increasing citizens’ trust in our own democracy? Congress and the Supreme Court both have monumental tasks to attend to on a daily basis, and their mutual understanding and collegiality is essential to the healthy functioning of the federal government. Continued discussion about enhanced media coverage of the Supreme Court is the most efficient way to reach an eventual compromise between the groups that will benefit both the public and the Court.