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Should Cameras Be Allowed at the Supreme Court?
Google “supreme court cameras” and see what you get: An overwhelming number of entries in favor of televised oral arguments. Most people like the idea, as is evidenced by a recent Gallup poll. 72 percent of all adults canvassed want to see the appeal on Obamacare argued before the justices. Even dividing the sample into party affiliation does little to skew the sentiment – at least 70 percent of Democrats, Republicans or Independents approve of such a broadcast.
Interestingly, the lowest favorability registered is among adults over the age of 55. I have a theory about this, which I will address shortly. For now, a consideration of the reasons people want a bird’s eye view of Court proceedings is worthwhile. C-Span has petitioned the Chief Justice to allow cameras in this particular instance because doing so is “in the public interest”. How will cameras in the chamber make this forum more beneficial to the American people?
The American Bar Association is on record supporting cameras, stating the following through it’s publication, Human Rights Magazine:
Clearly, broadened access would benefit the electronic media, including Court TV. The ultimate beneficiaries, however, would be the American people, who would gain a more comprehensive understanding and knowledge of their own judicial system and see the extraordinary lengths to which that system goes in search of the truth.
Citing the prosecution of New York City police officers in the fatal 1999 shooting of Amadou Diallo, Henry Sclieff, CEO of Court TV, argues that the televised trial was the antidote for rioting when the constables were aquitted. Visual exposure to the process, Schieff explained, led the public to accept the verdict, even if it did not agree.
Another argument in favor of cameras is cultural. In short, it advises the Court to enter the 21st century information age. The Chief Judge of the Ninth Circuit Court of Appeals is of this view. Alex Kozinshi has said:
Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us.
Still others believe that the First Amendment is only served if the broadest number of people can see the arguments unfold in real time. Transcripts and audio recordings just don’t do it for these free information advocates. Were I to guess, many of this stripe will also advocate cameras in the justices’ conference room. No deliberations should be shielded under this logic.
These concerns are legitimate, but tend to view the camera lense only as a benign tool of greater enlightment. They fail to understand its effects as a distraction and a narcotic. Using Congress as an example, it is easily granted that this institution had its share of posturing and showboating prior to the introduction of cameras. Yet television exacerbates this problem much more that minimizing it. Authentic deliberation requires decorum over drama, substance over rhetoric. TV in Congress has delivered only drama and rhetoric. State of the Union Addresses are used by presidents to humiliate justices, and by congressmen to humiliate presidents. Special Order speeches are not to persuade colleagues of the rightness of a cause, but to persuade voters – more likely, donors – of a legislator’s continued usefulness. Indeed, there is more dysfunction in Congress because of TV, not less.
As bad as cameras are in turning potential workhorses into showhorses, the continued reliance on images hurts the citizens’ ability to make sound judgments with regard to public policy. Yes, if cameras are installed in the Supreme Court chamber, we will be able to hear the arguments as they take place. However, many factors will be at play as we “listen”. A soft-spoken question or argument can be interpreted as lacking confidence. A combative justice – Scalia, for example – might be viewed as arrogant and the validity of his position discounted on that basis. Similarly, Justice Ginsburg could strike some as too old and doddering, no matter how insightful her questions. The whole institution will denigrate into a conglomeration of personality cults, to be either worshipped or villified. The justices’ legitimacy was not intended by the founders to rest on their likability.
Older people have lived longer without cable television and 24/7 news. They are more accustomed to reading the newspaper for information, and are willing to wait a day to get it. Linear, point by point arguments – divorced from images – are commonplace for them, hence a greater number of age 50-plus citizens have doubts about the civic benefits of cameras at the Court. While the ultimate broadcast of oral arguments may be inevitable, so too will the eventual erosion of the Supreme Court’s moral authority follow.