In her recent post, Caroline argued that televising oral arguments of the Court would fix the public’s ignorance about the Supreme Court and the activities of the judicial branch. The independence of the judiciary, so the argument goes, will not be compromised given a few nonintrusive electrical fixtures. At the same time, the people will gain much from being able to learn about what the mysterious Court actually does.
With all due respect, this is simplistic in both its understanding of the Court and the public. The people are not just couch potatoes that take in what they see and fail to respond. No, the masses can act and jeopardize the independence of the Court.
Little is really said about the judiciary in Article 3 of our Constitution. Article 3 establishes the Supreme Court and inferior Courts, whose members have a lifetime appointment. The lifetime appointment indicates that the Courts, unlike Congress or the Presidency, aren’t held accountable to the people. To prevent the Justices from having to worry about elections every few years, the Founding Fathers provided lifetime appointments to ensure independent arbitration of the law. Without lifetime appointments, Justices would decide cases according to what may get them reelected and therefore taint our rule of law. Given this provision, it remains clear that the framers never expected the judiciary to involve itself with public opinion.
In Federalist 78, Hamilton argued “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Indeed, to protect our civil liberties we need to ensure that the court remains independent.
So how exactly would keeping cameras in the courtroom infringe on the independence of the Court and the protection of civil liberties? If the oral arguments of the Court are televised, it would yield changes in behavior by both the Justices and the counsel. Justice Kennedy described the current dynamic between the two parties as “splendid.” It is more than likely that attorneys will change their style of argument to appeal to the masses under televised conditions. Even if their argument fails to win over the Justices, they would at least have an audience that becomes affected by the attorney’s cause. This audience could act out in response to the Court’s ruling. This is not to say that the people do not have the right to petition freely or know about the Court to react to the institution. Rather, the lawyers may frame the issue to purposefully incite strong emotion and misinform viewers about the real legal issues. To a certain extent, violent reactions to decisions would force the Court to curb its decisions to fit public opinion and prevent revolt. A slippery slope, you say, but with cases like Cooper v. Aaron (1958) and Barenblatt v. United States (1959), it remains evident that in times of revolt the Court must retreat from its previous policies to maintain government stability and prevent further infringement of rights.
Similarly, the media could frame the recordings of the Court in a similar light by using only the most controversial sound bytes.
As Justice Scalia said “100,000 people who will see maybe 15 second take-out on the network news, which I guarantee you will be uncharacteristic of what the Supreme Court does.” A clip of oral argument on the nightly news would do injustice (pun intended) to the deliberative pace of the law, by making viewers think that almost all of the argument consisted of the most inflammatory comments. Furthermore, it would ignore the real legal underpinnings of argument. It seems more likely that televising of the Court’s sessions is more likely to miseducate than inform people about the judiciary.
You could argue that such sound bytes are not the only means of presenting the recordings. Rather, the Court could have C-SPAN cover the entirety of oral argument. Pew Research Center surveys show that only 12% of the population watches C-SPAN even once a week. As Justice Scalia eloquently put it, “Nobody’s going to be watching that gavel-to-gavel except a few C-SPAN junkies.” The rest of the population would only gather its information about the Court from news programs.
While the effects of televising oral arguments of the Supreme Court on the people remain clear, these effects are more evident on the Justices. Justices interact heavily with counsel during oral argument: asking questions, commenting, retorting to their colleagues, and physically expressing their sentiments. If the sessions of the Court are publicized, the Justices may feel compelled to suppress a comment that may not go well with the masses. While the Justices have been appointed for life and ultimately decide the fates of cases, they still have to work in D.C. They interact as a part of the other branches and are silently (and ironically) judged by their peers.
One of the most compelling arguments against cameras in the courtroom involves the Supreme Court being a symbol for the entire judiciary comes from Justice Breyer. If cameras are allowed in the Supreme Court, then they could be allowed in lower courts. If so, then criminal cases could have cameras filming witnesses, jury members, and defendants. In Estes v. Texas (1965), the Court ruled that the petitioner’s due process rights were denied by the publicity surrounding the trial. In Nebraska Press Association v. Stuart (1976), the Court found pretrial publicity to create “tensions… between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment.” Thus, the allowing of cameras in the Supreme Court could eventually lead to the infringement of civil liberties.
While most Justices remain skeptical of allowing cameras in the courtroom, Justices Sotomayor and Kagan have stated that they would endorse such a policy. It is unclear, however, if their positions will change with more time on the Court.
It is true that the Supreme Court is a mysterious institution. But in our constitutional schema, it seems unlikely that it was built to be another way.
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