Monday, December 12, 2011

What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.
What could possibly be the reason for keeping the public in the dark of the Court and its work? No, really. To Marder, televised oral arguments “will make the justices’ job harder without making their work better.” This is an inauspicious opening salvo (though I am thankful that Marder did not invoke the sacred mantra of “judicial independence.”). Neither premise works. The idea of televising oral arguments is not about making their jobs easier, nor is it about making their work better. It is about accountability, about the Court leading what Funston once called a “vital national seminar.” It is about the Court’s educative function. If leading this important seminar is too hard for the justices, then maybe they should step aside and let somebody else do it.

What Marder and like-minded critics truly fear is that opening the courtroom to television “will make lawyers and justices guarded in their exchanges. It will also lead them to think about their images as well as their arguments.” In other words, they will have to show proper decorum to one another and to all advocates. Imagine that. Could we possibly live without Justice Scalia’s biting sarcasm, or Justice Breyer’s long and convoluted questions? Think about that for a second. What is truly being lost here?

The point is transparency. Yet somehow, Professor Marder argues that by writing “detailed” opinions, the justices “giv[e] us more insight into their decisions than those of any other government official.” She cannot possibly be serious. How do the justices select their clerks? We can guess, but cannot be sure. How do they choose their docket? Don’t really know. Again, we are left to guess. How do the justices coalesce around particular issues in a given case? No clue. To say that the Court is as transparent as any other institution, and is so by choice, borders on lunacy. That is simply not true.

For me, the matter boils down to the substance of the criticism. As Marder points out, the Court already provides written transcripts of their oral arguments, and it also provides a recording online. The Oyez Project at Chicago-Kent College of Law provides a remarkable resource for anyone interested on listening to these arguments. This is something that would have been blasphemous when I went to law school almost twenty years ago. Back then, we barely got a transcript, and the justices even refused to tell us the identity of the justice asking any question (which always made it a great thrill when a litigant answered a question by naming the justice). We have come a long way.

This is why I have faith that cameras will come to the courtroom sometime in the future. The Supreme Court, a conservative institution at heart, needs time.

I am far more troubled by the reasons behind these arguments against cameras in court. Anybody who wants to listen to them can do so, and can even see a picture accompanying the oralist. NPR is free to embarrass any justice it wants, and so is Fox News and MSNBC. They just would be missing the visual that attaches to the questioning. This must mean that the issue really is about the power of television, not about the substance of the particular argument. That is to say, behind the worry that television would force the justices to behave themselves lies a narrative about the American public that is none too flattering. The public can either not handle what they see or else they would misinterpret it.

In other words, they are just too dumb and easily manipulated by television elites.

Or else, the argument is that seeing the justices in their element will diminish their stature in the public eye. Professor Marder argues as much when she writes that “of the three branches, the judiciary still inspires the greatest trust and respect, and I would like to keep it that way.”

The Wizard of Oz would be proud.

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