Keep the cameras out of the Supreme Court

A bipartisan coalition of lawmakers – led by Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and ranking Republican member Charles Grassley of Iowa – introduced legislation last week that would require the Supreme Court to start televising its proceedings. As they filed their bill, freshman Sen. Roger Marshall, R-Kan., read aloud to reporters from a Dr. Seuss book – a publicity stunt that also felt like a foreboding omen.

It’s not that justices and attorneys would be reduced to antics like Marshall’s if cameras arrived. But they would inevitably act differently, in ways that could prove detrimental to the pursuit of justice.

Let’s stipulate that Justice Louis Brandeis was right when he said sunshine is the best disinfectant. Making the justice system more accessible to the public has undeniable educational and civic value. The Supreme Court should continue live-streaming the audio of oral arguments, which started last spring because of the pandemic, after virtual hearings end.

While transparency is a net positive, however, no one can argue Congress is more effective today, let alone more civil or deliberative, than when cameras arrived in the House of Representatives 42 years ago, followed seven years later by the Senate. That change began the bizarre tradition of members delivering fiery speeches to an empty chamber, transformed governing into realty television and made grandstanding lawmakers into minor celebrities.

While all three of Donald Trump’s Supreme Court nominees promised during their confirmation hearings to “keep an open mind” about ending the ban on videotaping, the six other justices have spoken against televising oral arguments. Such bristling from people with lifetime appointments should not necessarily be surprising or persuasive. Besides exhibitionists and television personalities, what sane person wants to invite strangers to watch video of them in their workplace?

The core arguments against the move have changed little since the first bill to allow cameras in the court was introduced in 1937. The justices mainly express fear that practitioners would play to the television audience instead of to the justices themselves. But these advocates can easily preen for gaggles of journalists on the steps outside after they address the court – they would be foolish to spend their time before the justices doing anything but trying to win votes.

While most justices are loath to admit it, or not self-aware enough to see it, broadcasting oral arguments for mass audiences seems more likely to alter their behavior. A few have acknowledged as much. “I think, frankly, some of my colleagues would act differently,” Chief Justice John Roberts warned at the University of Minnesota in 2018. Justice Elena Kagan worried the justices would filter themselves in “subtle” but “unfortunate” ways, such as no longer playing “devil’s advocate.”

Former justice David Souter, who declared in 1996 that cameras would enter the Supreme Court “over my dead body,” said New Hampshire televising judicial proceedings prompted him to behave differently when he was a state-level judge.

In terms of cameras, the Supreme Court is an outlier. All 50 states allow cameras in their highest court of appeal under varying circumstances. Circuit courts have been allowed since 1996 to decide whether to authorize television coverage of oral arguments. The highest courts in Australia, Canada and the United Kingdom provide video feeds.

But the Supreme Court is exceptional – in ways good and bad. So is our media ecosystem. While lower courts may draw saturation coverage for a trial like O.J. Simpson’s or Derek Chauvin’s, televised Supreme Court proceedings – especially those pertaining to hot-button cultural issues – would be incessantly dissected and watched by magnitudes more people than the proceedings of any lower court. Horse-race-style TV coverage would portray the justice system as a red team playing a blue team, making the institution appear hyperpartisan and further eroding its perceived legitimacy.

While justices are well known in legal circles, few are household names – or faces. That would change if arguments were televised. Putting proceedings on the tube would make justices instantly recognizable and turn them into popular culture celebrities, celebrated by allies and vilified by adversaries more than ever. This spotlight could have the intoxicating effect of inflating their already oversized egos and incentivizing them to play for the crowd.