The National Law Journal: Debate Escalates Over Cameras in Supreme Court
The following article appeared in The National Law Journal on February 6, 2015. A link to the article can be found here.
By Tony Mauro
Pressure on the U.S. Supreme Court is building—including from Congress—to allow broadcast coverage of court proceedings, even as some justices are solidifying their opposition to the idea.
The long-running debate is gaining new energy in light of high-profile arguments set for the next three months on same-sex marriage, the Affordable Care Act and the death penalty.
Speaking at the University of Chicago on Feb. 2 Justice Elena Kagan said she was “very conflicted” about allowing cameras in the high court, fearing that their presence will change oral arguments and encourage lawyers to speak in sound bites.
The same day, Justice Sonia Sotomayor said in Florida that she is “moving more closely to saying I think it might be a bad idea,” according to an Associated Press report. She, too, was concerned that cameras would spoil the dynamic of oral arguments, creating a “temptation to use it as a stage rather than a courtroom.” Both justices, who spoke favorably about camera access during their confirmation hearings, have been backtracking for several years.
But Rep. Mike Quigley, D-Ill., co-chairman of the House transparency caucus, said Sotomayor and Kagan should reconsider. “Supreme Court justices should welcome the opportunity to open the court to the American people,” Quigley said in a statement to The National Law Journal.
“With real-time access to arguments, Americans can see and hear the entire story and make their own decisions with the full context of what the justices are hearing and deciding,” Quigley added.
Quigley, who held a briefing on the issue Jan. 27, is asking House colleagues to co-sign a letter urging Chief Justice John Roberts Jr. to allow video and live audio of the upcoming oral argument on the constitutionality of same-sex marriage bans, likely to take place in late April.
A draft of the letter to Roberts, made available to the NLJ, states, “We can all agree that the American public is better served when all three branches of government are transparent and accessible. … Furthermore, greater public access to the Supreme Court will undoubtedly lead to greater accountability and a better understanding of our country’s judicial system.”
On Jan. 6 Quigley, along with reps. Gerald Connolly, D-Va., and Ted Poe, R-Texas, reintroduced a bill, H.R. 94, that would require the court to allow cameras at all its public proceedings except when a majority of justices agree that a due process violation would result.
Meanwhile news media organizations are also pressing the court to allow broadcast coverage of the marquee arguments on the court’s docket.
“The country, if not the whole world, is watching to see what will happen. And yet they cannot truly be watching, because live audio-visual coverage of Supreme Court proceedings is still barred,” the Coalition for Court Transparency said in a letter addressed to Roberts last month. “And while the cases affect millions of people’s everyday lives, only those present in the courtroom that day will get to see and hear the oral arguments as they happen.”
The coalition includes the American Society of News Editors, the National Association of Broadcasters, the National Press Photographers Association and the Radio Television Digital News Association, as well as public interest groups Citizens for Responsibility and Ethics in Washington, the Alliance for Justice, Constitutional Accountability Center and openthegovernment.org.
In spite of the pressure, the prospects for change at the court seem dim, unless Congress forces the issue—which it has been unwilling to do in the past.
None of the current justices favor allowing cameras in, and given the collegiality among them, change is unlikely unless most if not all justices reverse course. Retired Justice David Souter’s 1996 threat that cameras would roll into the court only “over my dead body” could still weigh on the minds of some current justices.
During a recent Amicus podcast on Slate, hosted by Dahlia Lithwick, two former Supreme Court clerks who are now First Amendment scholars agreed that the court’s collegiality may account for why justices like Sotomayor and Kagan, who once favored the idea, change their minds after being on the court for awhile.
“There is this very close relationship between and among the justices,” said RonNell Andersen Jones, a professor at Brigham Young University J. Reuben Clark Law School who once clerked for Justice Sandra Day O’Connor. When new justices arrive, she continued, “the weight of opinion is so heavily against [cameras] from their peers that they feel the respectful thing to do it to take that position as well.”
Sonja West of the University of Georgia School of Law added, “They get on the court and the justices feel this great obligation to this institution they are part of. And they don’t want to be the one that messed it all up.” West, a former clerk to Justice John Paul Stevens, said she understands that point of view but disagrees with it.