December 10, 2005

Why Congress should impose TV cameras on the Supreme Court.

A few weeks ago, I wrote about a bill in Congress that would impose TV cameras on the Supreme Court, and I raised the question whether it might violate separation of powers. The other day, a journalist writing on the subject called me for an elaboration, and I had to admit that I didn't think there was much of any substance to the constitutional problem. Cameras in the conference room would be another matter. In any case, I think the public would be well served by the ability to see and hear these arguments, and much as I would prefer the Court to adopt cameras for itself and think it's rather intrusive for Congress to act, I think Congress should do it. I'll explain why.

First, let me point out this piece by Dahlia Lithwick that made me want to write about the subject again. She notes that it's blogging not television that threatens the Court's dignity these days and says:
If the high court doesn't make at least some concessions to the public, the American people will get to know its justices and their jobs through parody and politics alone.
Lithwick also notes how camera ready John Roberts is:
[Y]ou cannot attend oral argument these days without being slapped right in the nose by Roberts' youth. Not only is he significantly and markedly younger than almost all his colleagues, he's also clearly a product of the Age of Letterman. ... [T]he new chief is already making it clear that such acts of deluded grandeur are just not his style....

Indeed, one of the reasons Roberts fared so brilliantly at his confirmation hearings this fall was that he is so clearly a product of life after television (unlike, for one, the unfortunate Robert Bork). Roberts' total mastery of the medium—from his subtle comic timing to his gestures and demeanor—revealed right away that this was a guy raised on mass media....
But being raised on TV does not ensure that you will be good on TV. Bork's problem was not merely that he didn't grow up with television. He was a man of significantly less than average physical beauty. A stylist could have helped with better hair and makeup. But still, he was no John Roberts. Roberts is telegenic, and he would be even if TV were invented yesterday. And it's not just looks. It's manner, verbal ability, and the wit to display verbal ability in short bursts. John Roberts has all that. Few others do -- whatever their age.

So, we can't predict that a generational turn will make the Justices want to invite TV cameras into their presence. There will always be Justices who are more television ready than others, unless Presidents limit themselves to appointees that have the whole John Roberts set of attributes. But we already know that isn't going to happen. Harriet Miers was not television-ready, and neither is Samuel Alito. There just isn't that much television talent among those with the experience, ability, and character to belong on the Court. Why would such stars have holed up among the books all their lives?

But there is an even more important reason for the Justices to resist the cameras, and it is the reason I think it is most important for Congress to take the lead. The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices, as noted, are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanent but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

And I want to watch the arguments on television too.


Art said...

I agree that if the court isn't on TV when the other branches are, it will become a less than equal branch.

But a word of warning: They'll hire a media consultant, too. Be prepared for a wallpaper backdrop with the message point for the case.

Do you really want an abortion case heard with the words "Rights of the unborn" written a hundred times behind the bench?

Ann Althouse said...

Art: It would scarcely enhance the Court's political power for them to appear political.

Ann Althouse said...

Also, Art, you're saying "I agree" to something I never said! Much as I like agreement, I don't want your comment to stand as a summary of what I just said. Indeed, I said practically the opposite!

Dave said...

"I think the public would be well served by the ability to see and hear these arguments"

That presupposes, doesn't it, that the public will (1) watch such TV, and (2) be educated enough to infer appropriate things from such TV.

I see evidence of neither. When the press did wall-to-wall OJ coverage, it was clear that the vast majority of the commentary made by the public was ill-informed and ignorant. (I reserve judgment on comments made by the press or their talking head "experts" because I don't recall the specifics there.)

I don't see how the mere presence of TV cameras in a court room will make the public any more informed about what happens in the court room.

I've been to the Supreme Court a number of times to hear cases argued, mainly out of an interest in this country's history as being an innovator in the affairs of government. But I suspect my interest is relatively rare. And, let's face it, few Supreme Court cases are theatrically interesting in the way that Americans have come to know court. (More Americans are familiar with Joe Pesci's machinations in My Cousin Vinny than they are with how a real court operates.)

If we argue that it would be a public good to have TV in the Supreme Court--that the populace would become more informed--then it should follow that, with the advent of C-SPAN, our population has become more engaged and informed.

There is no evidence for that position.

Art said...

I'm confused. You appear to want cameras in the courtroom.
So do I.
The comment about the stenciled backdrop was a joke.

erp said...

Okay, but only one fixed camera taping the proceedings. No close-ups and no shots of spectators, reporters, etc.

You know, like CSPAN before it became politicized.

Ann Althouse said...

Art: You wrote: "I agree that if the court isn't on TV when the other branches are, it will become a less than equal branch." I did not say that. I said just about the opposite.

Mark Daniels said...

I disagree with you on this one and wrote about it in a post about the oral arguments released in audio form last week:

I may write about this topic more extensively on my own blog later.

Mark Daniels

Simon said...

"In any case, I think the public would be well served by the ability to see and hear these arguments?" - how and why? "Cameras in the conference room would be another matter." -

What you have to ask yourself is: on balance, has CSPAN been positive for the public's image of Congress and what Congress does? People who answer unequivocally "yes" are likly to support cameras in the Supreme Court, as are people who view the court's role in Brennanesque terms. Those who have concerns about CSPAN's effect and the court's role are likely to be more sceptical. So, has CSPAN been positive for the public's image of Congress and what Congress does? Is the public better informed today about how the Senate works? Are members of the House of Represenatives less corrupt, and debate more enlightened? To be sure, there are transient, voyeuristic thrills to be had from watching Congress at work, and indeed, the case for televising a democratic branch of government is far stronger than that for televising the court, but I simply don't think CSPAN has helped. When I first moved to America, I thought CSPAN was the best thing since sliced bread - I watched it incessantly. But the more I've thought about it, the more sceptical I've become of its benefits.

I yield to no-one in my admiration for Justice Scalia, and I agree that with cameras, he would win many new adherents. This is A Very Good Thing (tm). But this is not sufficient argument to bring cameras into the court. The problem is, it is so EASY these days to watch Congress. And when something is easy, it breeds lack of commitment. Want to know what Congress is doing? You can just flip the channel. But, if it's as easy as the push of a button to finhd out what Congress is doing, it's as easy as the push of a button to go watch something else. By contrast, anyone can attend oral argument, but the fact that it takes effort to do so - one must drive to Washington, or worse yet, get on a plane - breeds commitment. If you've driven from Wisconsin to watch the Court at work, by God you're going to stay there and watch it work, not just take it in pieces as the mood strikes.

The benefits of cameras, I think, are illusory and ephemeral, even more so than with Congress (where, at very least, a good argument can be made that these are our elected representatives, and we therefore ought to be able to see them at work; no such argument should be possible if the court's doing what it's SUPPOSED to be doing), and the potential problems too severe. With instant access to the arguments and the briefs, every evening newscast will carry armchair Justices saying how they'd decide the case, devaluing the actual work of the court. And the concern that cameras will encourage people to think of the court as a branch of govennment, responsible to constituencies, will encourage a trend I think to be a very bad thing, the tendancy to make law not say how it applies to a case. It will only encourage Anthony Kennedyism.

I want to watch the arguments on television, too, Ann. I would watch it gavel-to-gavel. I'd tivo the arguments and annually compile a "greatest hits of October Term 200x" video for Ninoville. But the concerns far outweigh the benefits, IMHO, and thus - absent a genuinely compelling argument in favor of televising the oral debates, or even broadcasting audio live - I respectfully dissent.

Pooh said...

Is it being too cynical to suggest that televising O/A might provide an incentive for grandstanding (political or otherwise) by advocates appearing in front of SCOTUS?

steve u. said...

Pooh, given everything that goes into the effort and the stakes involved, fools typically don't get to argue before the Court. Cameras or no cameras, I can't imagine good lawyers would do anything other than try to sway at least 5 of the people in front of them.

Given the enormously important role the Court plays in our open society and the role it occupies in actually defining that society and the rules by which it operates, it's pretty amazing (and shameful) that arguments aren't televised.

Lastly, comparisons to C-SPAN don't do justice to the crispness, brilliance and drama on display at Supreme Court arguments.

XWL said...

Arguments, yes. Deliberations, even better.

The Supreme Court isn't like other courts. They aren't even like other grand juries. An exception could be made where privacy of a litigant still matters, but for most cases not only should the arguments be heard but I think the deliberations between the Justices should also be televised.

That might lead to secretive meetings in corners away from the camera's eye in groups of 2 or 3, but that probably goes on to some extent anyway.

When the full 9 speak with each other I think it's in the public interest to hear what they say and know how they arrived at their final conclusions.

The arguments matter and definitely should be spread as wide and far as technology will allow, but I advocate going one step farther and opening up the deliberations for public eavesdropping.

It would be a radical departure, unprecedented compared to any other court in the world, and a boon for democracy.

Maybe a State Supreme Court could try on that sort of openness for size first to see how it works. I've even heard the states described as 'laboratories of democracy', what a concept!

Pooh said...


I agree to an extent. My question was based on two things: First, there is at least the impression that prosecutors do use the courtroom as a political stepping stone.

Second, I'm not suggesting that people will become buffoonish in front of the camera, but rather attempt to get a nice soundbite in. I just don't think that that is appropriate. Maybe the single, static camera idea obviates this concern.

I'm not suggesting it's a deal-breaker, just that it is a concern to be addressed.


do we webcam their clerks also? (The late, great A3G would have loved that one...)

Honey Badger said...

The idea of Congress "imposing" anything on the courts makes my skin crawl. Rosy populist rhetoric aside, this is a punitive and retaliatory move blatantly designed to bring the Justices to heel. Listen to the "Sunshine in the Courts Act of 2005" hearings and you'll notice how the people most fervently behind this are barely able to choke back their anger every time they talk about it. Angry people and objective policy just don't go together, folks.

Think about it: the name of the act itself implies all sorts of rank and festering disease that would be "cured" if only we could get some sunshine in there. Bah.

Another point nobody seems to want to make in public is that the Justices simply don't want deal with being the subject of an endless stream of chatter from the hoi polloi about complex legal issues they literally can't understand. Who needs that kind of exposure to the masses' vitriol when, by definition, their opinion shouldn't matter in the first place?

Besides, when you think of all the idiotic and increasingly violent impeachment rhetoric floating around on right-wing boards, I wouldn't blame them.

Honey Badger said...

Simon wrote:

"I yield to no-one in my admiration for Justice Scalia, and I agree that with cameras, he would win many new adherents."

So would Justice Breyer. But once you bring in a regular national audience, I suspect these dashing and charming fellows might fall so in love with the sound of their own voices they'd never let anyone else get a word in edgewise. Just a hunch.

I wonder if cameras would make the Justices nicer or meaner to government counsel? As it is, hearing them gang up and dogpile the poor guy can be something of an exercise in vicarious intellectual sadism. The thinking man's "heavy verbal", as it were.

"By contrast, anyone can attend oral argument, but the fact that it takes effort to do so - one must drive to Washington, or worse yet, get on a plane - breeds commitment."

"Committment?" Isn't the word you're looking for "devotion"? Like you, my first thought was "if people want to see oral argument, they can go stand in line at three in the morning and freeze their tails off for six hours like I do". But keeping cameras out just so we can experience the "specialness" of making sacrifices on our Holy Pilgrimage to the Temple of the Constitution isn't really good enough. There really are better reasons out there.

You might also want to keep in mind that if they had a choice, the Justices would probably kick people like us to the curb too.

snowball said...

Ann said: "And I want to watch the arguments on television too."

I'm sure you do. Me too. But there's no groundswell of support from the "public" for this. As best I can tell, this is driven principally by cable and broadcast television interests.

The "movement" is helped along by law types who want to watch the Court from the comfort of home. All the theorizing about the public benefits of televising oral argument is just window-dressing to cover up essentially selfish motives all around.

snowball said...

One more thing.

Television will probably make oral argument at the Court a perfect target for protesters and hecklers. Spectators at the Court aren't way up in a balcony, as they are in the galleries in Congress.

Farnsworth said...

One more buffer between Bill O'Reilly, Chris Matthews et al. and the Supreme Court must be a good thing, I think. TV media is full of idiots. Exposing idiots to one more thing they don't understand is bound to go badly.

GEB4000 said...

If we let cameras into the court, everybody will focus too much on the justices' appearance. A president shouldn't spend a moment thinking how his nominee will appear on television. Justices shouldn't be thinking about botox and hair implants when they hear court cases.

cylon said...
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