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Making a Case for Televising the Supreme Court

• November 16, 2011 • 12:48 PM

The upcoming U.S. Supreme Court debate on health-care reform offers a prime time to start televising its hearings and allowing cameras in the courtroom.

Over the years, media advocacy groups and news outlets have jotted off letters to the Supreme Court pleading for a basic form of access their counterparts in other democracies already have: cameras in the country’s highest courtroom.

The response has always been the same, but with varying explanations. Cameras would be too obtrusive. The wires and equipment would get in everyone’s way. Filming the court would turn it into a circus. The whole demeanor of the place would change. Justice David Souter summed up all of this with a jurist’s eloquence: “I can tell you the day you see a camera come into our courtroom,” he said in 1996, “it’s going to roll over my dead body.”

Justice Clarence Thomas has even argued that he doesn’t want to go on camera to protect his anonymity – perhaps the anonymity he gains by sitting in compete silence on the bench.

“But isn’t that just the point?” asked Kathleen Kirby, an attorney with Wiley Rein and the general counsel to the Radio Television Digital News Association. “That we’re entitled to see it even if he’s not saying anything?”

The issue has flared up again this week with the court’s announcement that it will rule on the constitutionality of the health-care law this term.

“When they took this case, I was like, ‘Come on! Now you have to do something,’” Kirby said. “I mean Obamacare has divided the public since it was signed into law. Everybody gets this. Everybody’s going to want to see what the Supreme Court does about this.”

The outcome will inevitably impact the 2012 election and could even provide marching orders to Congress for how it can set a whole range of policies in the public interest.

Tuesday, the RTDNA sent yet another letter to the Supreme Court arguing as much. C-SPAN this week did the same. As they see it, the arguments for having cameras in the court are as strong as ever, while the arguments against them have largely dwindled away. Today, technology has made cameras less obtrusive. And as they have expanded to cover every moment of the action on the floor of Congress – and even some White House meetings like last year’s health-care summit – their absence inside the Supreme Court seems all the more glaring.

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“This has just become ridiculously anachronistic,” Kirby said. “We’ve got 47 states, and the high courts of Britain and Canada all televising their proceedings. But as Supreme Court justices have come and gone, I think it’s difficult to change what is an entrenched opinion.”

News outlets have argued that the public almost always benefits from exposure to the processes of government. The Founding Fathers also urged the court to hold trials “before as many of the people as chose to attend.” And today, technically, everyone can choose to attend by turning on a TV. Kevin Benz, the RTDNA’s chairman, touched on this idea when he wrote to the court arguing that “video is our society’s common language.”

Many of these same organizations made these same points on the eve of oral arguments in the Bush v. Gore case that decided the 2000 presidential election.

“Because Florida’s courts were among the first to open their doors to cameras, you kind of saw the initial stages of this whole election debacle play out,” Kirby said. “And then by the time it got up to the Supreme Court, it disappeared from public view.”

More recently, the court has provided audio recordings of arguments at the end of each week. But it still doesn’t allow journalists to broadcast live video or audio. Bush v. Gore helped push things in the right direction, but media advocates have lamented for years that their case still suffers from the legacy of the televised – and circus-like – O.J. Simpson trial in a Los Angeles County court.

“Having lived through it,” Kirby said, “it was very clear that O.J. just set the cameras movement back decades.”

Her most compelling argument today – from the point of view of the people who need to be convinced – may be that the court itself could benefit from cameras.

“We’re in an era where everybody thinks everything is partisan,” she said. “Most of the big decisions that have come down have been 5-4, and the public sees them as votes not cast based on legal arguments made, but on political preferences. And I think televising the proceedings would help folks to understand that in fact that is not always the case.”

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Emily Badger
Emily Badger is a freelance writer living in the Washington, D.C. area who has contributed to The New York Times, International Herald Tribune and The Christian Science Monitor. She previously covered college sports for the Orlando Sentinel and lived and reported in France.

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