Justices who dread the arrival of television should console themselves that it could be worse. Real transparency for the Supreme Court would be allowing TV cameras into their deliberations. Now that would be great television: Deliberations are where the real action is.
Porcinophobia, fear of hams, is the main thing keeping the justices of the Supreme Court from opening their proceedings to television. They are afraid that showoff lawyers will perform for the cameras, rather than for the court, thereby lowering the tone to the level of, well, television.
This would be an odd way for lawyers to react. After all, the most important consideration — for themselves and their own futures, as well as for their clients — will remain winning the case. And if the justices do let the cameras in, it will be with gritted teeth (if not over their dead bodies, as former Justice David Souter described his lack of enthusiasm). They are likely to be more hostile, not less, to any sign of hamming it up.
The question of the Supreme Court allowing cameras in its courtroom is not new — that Souter quote is from 1996. But it has renewed relevance and urgency thanks to next month’s oral arguments over the constitutionality of the Obama administration’s health care law, a five-and-a-half-hour marathon scheduled for March 26-28. The court is now considering requests from scores of lawmakers and media organizations to open its proceedings to TV cameras.
Supreme Court oral arguments are riveting. Now, the only people who get to see them are the tiny number who can fit inside the courtroom. There has been creeping availability of audio (though not yet streaming audio) in recent years, with sound recordings released after years, then at the end of each year, then at the end of each week, then occasionally right away.
So it’s clear where this train is heading and there’s no good reason it shouldn’t get there immediately.
Is there any magic to the current number of people who can be squeezed into an oral argument? If the Supreme Court building were remodeled to double the size of the courtroom, would the justices decide that it should be filled only halfway, to keep the number of people who get to see it in action the same? Of course not. So what if it quadrupled in size? Octupled? This is how lawyers and judges like to think about things, and it leads straight to the conclusion that an audience of millions around the globe is just an extension of the few dozen in the courtroom itself.
Opening up the court to TV would teach viewers two valuable lessons about lawyers and the law. One is that judges — even Supreme Court justices — shouldn’t, and generally don’t, decide cases based on their personal preferences. They decide based on their interpretation of the Constitution and the law.
This is a fact more often obscured than clarified by the print media, which must condense complex rulings in a way that broadcasting the court would avoid. Obviously, few people are going to sit through hours of proceedings in order to have that point drilled into their heads. But many will tune in for an hour or so and will hear arguments about the Commerce Clause so different from the treatment of this issue in a political campaign and the coverage of it, that a bit of this understanding will rub off on them.
The other lesson is less flattering to lawyers and judges. In recent years, the Supreme Court bar has evolved into a smallish group of brilliant lawyers, most of them former Supreme Court clerks, who specialize in Supreme Court arguments. Regular watchers of C-Span, or wherever the complete court sessions would be broadcast, would soon see the same lawyer arguing a different, and possibly contradictory, point about the same issue for a different client. They may wonder, “What does he really believe?” If too many people begin to ask themselves this question, the entire foundation of the rule of law could be at risk.
In this age of transparency, the refusal of Supreme Court justices to allow TV cameras in their courtroom is an anomaly that can’t last. In a way the court is already the most transparent branch of government, because it must hear and interrogate both sides in any case it decides, and then must issue an opinion explaining and justifying its reasoning. Justices who disagree with the majority must do the same. Congress operates under no such requirement, and neither does the president. A lot more people would appreciate these differences if the court’s proceedings, which are public anyway, were televised and available to the whole public.
Justices who dread the arrival of television should console themselves that it could be worse. Real transparency for the Supreme Court would be allowing TV cameras into their deliberations. Now that would be great television: Deliberations are where the real action is.