VOLUME 101 NUMBER 2 SUMMER 2017 14 PERSPECTIVE JUDICATURE VOL. 101 NO. 2 Published by the Duke Law Center for Judicial Studies. Reprinted with permission. © 2017 Duke University School of Law. All rights reserved. www.law.duke.edu/judicature CAMERAS BELONG IN THE SUPREME COURT n Jan. 24, 2017, the United Kingdom’s abortion, affirmative action, gun rights, Obamacare, BY Supreme Court issued its monumental deci- campaign finance reform, voting rights, redis- ERWIN sion concerning the fate of Brexit, a legal tricting, and numerous other fundamental issues CHEMERINSKY Oruling with major implications for the people of concerning how the people of the United States AND England, Europe, and the rest of the world. Few govern and define themselves have been made by ERIC J. judicial announcements outside the United States our highest Court. Yet, the Supreme Court of the SEGALL have generated greater interest than the Brexit deci- United States has never allowed a single oral argu- sion. Given the enormous implications of the case, ment or decision announcement to be broadcast it is not surprising that the people of the world or live streamed. This stubborn and anachronistic were allowed to watch the decision come down from refusal to enter modern times is not just a national these judges through a streaming of the event in embarrassment but a great disservice to the rule of real time, just as it should be. law and a government by and for the people. The United States Supreme Court is now and Thirty-five state courts of last resort regularly has been for over 200 years the most powerful and live stream or televise their arguments. Some federal important legal tribunal in the world. As Alexis de courts of appeals, such as the U.S. Court of Appeals Tocqueville said in the 19th century, “there is hardly for the Ninth Circuit, live stream arguments and a political question in the United States which does make them available for viewing in an archive. Trial not sooner or later turn into a judicial one.”1 Over judges all over the country allow television in their the last ten years alone, critical decisions regarding courtrooms when there is public interest in the JUDICATURE 15 proceedings. The Supreme Courts of Canada, Brazil, presidential power, millions of Americans could and numerous other countries allow their people come together in a moment of national pride (or to see their justices at work and have done so for sorrow) and political engagement; it would be an a long time. Despite this overwhelming pattern of entirely different and better experience than hearing openness among state and international courts, our the news second-hand and after-the-fact from a few During these justices remain in hiding, doing their public work select journalists. in the darkness of a television and internet blackout. increasingly THE ARGUMENTS AGAINST CAMERAS partisan WHY CAMERAS? IN THE SUPREME COURT Our Supreme Court’s oral arguments and deci- In the face of these overwhelming benefits to tele- times, the oral sion announcements are open to the public, which vising or live streaming the Court’s already open means a few hundred lucky people are allowed to proceedings, the justices have made flimsy argu- arguments witness them. The rest of us, however, are not so ments at best to remain in the darkness. Some of could set an fortunate. Governmental hearings that are open to these arguments against cameras are undermined some should be open to all, especially when an orga- by the availability of audiotapes released soon example of nization like C-SPAN is ready, willing, and able to after the arguments. At least since Bush v. Gore in how public cover the event at its own expense. Supreme Court December 2000, the Supreme Court has, on occa- proceedings — oral arguments and the announcing sion, in high-profile cases, allowed broadcasting of officials can of decisions — are public events; the public should the audiotapes of oral arguments immediately after disagree, CAMERAS BELONG be able to see them. they conclude. In all cases, transcripts are available Allowing the American people to actually see the the day of the arguments and audiotapes at the end sometimes justices at work would have many positive effects. of the week in which the case was argued. On occa- vehemently, In addition to the usual democratic advantages of sion, C-SPAN has taken advantage of this oppor- governmental transparency, there are educational, tunity, broadcasting the audiotapes as soon as they without historical, and civic benefits to visible Supreme become available and showing still photographs of rancor or Court proceedings. We could observe lawyers and the justices and advocates as their voices are heard. judges as they debate our most controversial, divi- If people can hear the tapes just minutes after the personal sive, and often partisan issues with respect, civility, arguments conclude, it is impossible to see the attacks. and moderation. During these increasingly parti- harm in allowing them to see the proceedings live san times, the oral arguments could set an exam- just an hour earlier. ple of how public officials can disagree, sometimes What possible rationale is there for excluding vehemently, without rancor or personal attacks. cameras from Supreme Court proceedings? One Ultimately, the public would see that Supreme concern is that broadcasting arguments will change Court justices are human beings conscientiously the behavior of lawyers and justices. Perhaps that tackling difficult legal issues. concern has some basis in trial courts, where there is If the events were televised or live streamed, our worry about the effect of cameras on witnesses. Even museums could display the Court’s most important there, however, the experience of many jurisdictions oral arguments and decision days in a way that would with cameras in the courtrooms and many studies appeal to both lawyers and non-lawyers. Students refute any basis for concern.2 could gain improved insight and understanding But especially in the Supreme Court, there seems about the Court and the justices. Potential Supreme little basis for worry. The lawyers, who are focused Court litigators could view Justice Elena Kagan’s on answering intense questioning from the justices, sharp questioning, Justice Stephen Breyer’s often are unlikely to alter their arguments to play to the scholarly approach to complex issues, and Justice cameras. Justices and lawyers already know that the Clarence Thomas’ silence and body language. arguments, especially in high-profile cases, will be Historic moments involving race relations, abor- extensively covered in the media, and audiotapes tion, affirmative action, gun control, and voting will be publicly available. In this context, it seems rights would be captured for all time instead of highly unlikely that a live broadcast would change being lost to history. It is just not enough in our behavior. And anyone who has witnessed a Supreme ever-more visual society for people to listen to audio Court argument knows that the justices are firmly tapes while watching still images of the justices. in control of the proceedings. And, when the Court hands down landmark deci- The experience of other countries, states, and sions, like those involving same-sex marriage or federal courts of appeals where appellate argu- 4 16 VOL. 101 NO. 2 ments are broadcast further shows no reason for public appearances of many of the justices. Justice concern that cameras will change what goes on in Sonia Sotomayor has appeared on “Sesame Street” oral argument.3 We know of no jurisdiction that and dropped the ball in Times Square on New Year’s has allowed broadcasting of appellate arguments Eve. Justice Breyer has appeared on numerous tele- In no other and then, because of bad experience, changed its vision shows to promote his books. Justice Antonin policy. Judges and lawyers report that they simply Scalia frequently appeared in media. Justice Ruth context would forget the cameras are there as they participate in Bader Ginsburg has embraced her reputation as the Supreme Court oral arguments.4 “Notorious RBG,” an internet meme that now is It is especially absurd that the justices do not featured on t-shirts.7 justices allow broadcasting of their announcements of deci- A few years ago, while testifying in front of sions. At times, these are quite dramatic, such as Congress about the Court’s budget, Justice Anthony say that when justices read dissents from the bench or make Kennedy made some troubling remarks about his government comments that are not contained in their written objections to cameras in their courtroom. Justice opinions. These statements from the bench are not Kennedy said, “We are a teaching institution, and officials recorded or transcribed and are forever lost except we teach by not having the television there, because can protect for whatever reporters say about them. we teach that we are judged by what we write, the We have heard justices express concern that if reasons that we give. We feel . that our insti- themselves television cameras were allowed, the media might tution works. And in my own view, there would from possible broadcast excerpts that offer a misleading impres- be considerable reluctance where I would have the sion of arguments and the Court.5 For example, instinct that one of my colleagues asked a question criticism by Justice Breyer told Congress that “the first time because we were on television. I just don’t want that cutting off you see on prime time television somebody taking insidious dynamic to come between me and my a picture of you and really using it in a way that colleagues.”8 public access. you think is completely unfair . in order to Justice Kennedy’s two objections to cameras caricature [your position] .