California Forum

There is no excuse for keeping cameras out of the U.S. Supreme Court

Rep. Pramila Jayapal, D-Wash, speaks at an anti-Muslim ban rally outside the U.S. Supreme Court, Wednesday, April 25, 2018, in Washington. The high court took the novel step of releasing audiotape of the hearing on President Donald Trump’s travel ban.
Rep. Pramila Jayapal, D-Wash, speaks at an anti-Muslim ban rally outside the U.S. Supreme Court, Wednesday, April 25, 2018, in Washington. The high court took the novel step of releasing audiotape of the hearing on President Donald Trump’s travel ban. AP

The Supreme Court’s decisions affect all of us, often in the most important and intimate aspects of our lives, but the court still refuses to allow live broadcasts of its proceedings. On Wednesday, April 25, the court heard oral arguments in one of the most significant cases of the term concerning the legality of President Donald Trump’s travel ban.

After the oral argument was finished, the court took the unusual step of allowing audiotapes to be immediately released. Nothing was gained by waiting until the argument was finished rather than broadcasting the proceedings live. Indeed, there is no good reason for not having every proceeding in the Supreme Court televised live.

What possible rationale is there for excluding cameras from Supreme Court proceedings?

Arguments in the Supreme Court always have been open to the public, but relatively few can attend in person. There are only about 300 seats and people camp out all night, or for even longer, to be able to attend arguments in high profile cases.

Allowing the American people to actually see the justices at work would have many positive effects. In addition to the democratic advantages of governmental transparency, there are many educational, historical, and civic benefits to visible Supreme Court proceedings.

We could observe lawyers and judges debate our most controversial, divisive, and often partisan issues, with respect and civility. During these increasingly partisan times, the oral arguments could set an example of how people can disagree, sometimes vehemently, without rancor or personal attacks.

Ultimately, the public would see that the Supreme Court is comprised of nine human beings conscientiously tackling difficult legal issues.

Historic moments involving race relations, abortion, gun control, and voting rights would be captured for all time instead of being lost to history. There are not even audiotapes of the Supreme Court announcing decisions, even though justices often will say things from the bench that are not in the written opinions.

Many of the arguments against allowing cameras in the courtroom are really arguments against allowing the public and reporters to be there at all, something that is thankfully unthinkable as well as unconstitutional.

What possible rationale is there for excluding cameras from Supreme Court proceedings? One concern is that broadcasting arguments will change the behavior of lawyers and justices. Perhaps that concern has some basis in trial courts where there is worry about the effect of cameras on witnesses.

Even there, however, the experience of many jurisdictions with cameras in the courtrooms and many studies refute any basis for concern. In fact, many federal courts of appeal and state supreme courts, including the United States Court of Appeals for the Ninth Circuit, provide a livestream of all oral arguments. No adverse effects have been seen.

Especially in the Supreme Court, there seems little basis for worry. The lawyers, who are focused on answering intense questioning from the justices, are unlikely to alter their arguments to play to the cameras.

Besides, anyone who has witnessed a Supreme Court argument, knows that the justices are firmly in control of the proceedings. More importantly, justices and lawyers know that the arguments, especially in high profile cases, are going to be extensively covered in the media and audiotapes will be publicly available. In this context, there is no reason why live broadcasting will change behavior.

I have heard justices express concern that if television cameras were allowed, the media might broadcast excerpts that offer a misleading impression of arguments and the court. But that is true when any government proceeding is taped or even when reporters cover any event. A newspaper or television reporter could quote a justice’s question or a lawyer’s answer out of context. The Supreme Court should not be able to protect itself from misreporting any more than any other government institution can do so.

There is no excuse for keeping cameras out of the Supreme Court. The court should change its rules or Congress should pass legislation requiring the court to allow broadcasting and taping of its proceedings.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

  Comments