October 3, 2011

"If everybody could see this, it would make people feel so good about this branch of government and how it’s operating."

Kenneth W. Starr —  former federal judge, Solicitor General and independent counsel — quotes Justice Elena Kagan in a NYT op-ed arguing — as so many have argued before — that the public deserves video access to the oral arguments in the U.S. Supreme Court.

The main argument against it, as stated by the resistant Justices, is that some Justices would showboat for the cameras and try to get the sound bite of the day. I think an unspoken reason why they resist cameras — when they release audio to the world — is that they don't want us all checking our how they look, particularly if they look tired and old. As I said back in 2005:
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.
A new counterargument occurs to me as I reread that. A President with the power to appoint a new Supreme Court Justice will think about how well the nominee will represent the administration's political agenda on TV. He'd want someone who looks and speaks persuasively to the public through the new medium.

Justice Kagan talked about making people feel so good about the judiciary, and, obviously, she intended to convey the notion that the Justices stick to legal arguments and apply themselves to puzzling through the various texts. But if one Justice — say, Elena Kagan — has the skill and charisma to project into the camera and make her approach to interpretation lodge in the minds of the people, those who support the other "side" would want an equivalently powerful voice. That good feeling could be comfort with the abuses of power by the other branches of government or a complacency that whatever we need and want can be provided by a benevolent Court.

And yet, I suspect, that if people had more access to the arguments, we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now. I know I would love the ability to make clips from the video to incorporate into blog posts that discuss and explain the issues. Of course, I would jump at the opportunity to extract funny little things for all sorts of diverse bloggerly purposes. But the Court, like the other branches of government, deserves to be laughed at too.

80 comments:

Christian said...

And if you could change something without changing it, then you would have succeeded in defying both the laws of physics and common sense at the same time.

Is it a stretch to suggest it operates well because it's not filled with grand standing before the court, but because it's just focused on arguing on the merits, that while aware of public opinion, is not grandstanding directly in front of the public speaking to the judges and the public?

If anyone persists in adding cameras to the court, then I suggest the following... put cameras in now. And don't show the tapes until 3-5 years from now. Sure, you'll have to wait half a decade before you get your first glimpse, but then it will start streaming in and it would probably serve the greater public by getting us to examine things that happened in recently history instead of constantly focusing on whats under our noses right now.

Nonapod said...

How often would regular people bother to watch such stuff do you think? How many people watch C-Span with any regularity?

bagoh20 said...

By 2030 the entire court will look and act like TV weather people. NTTIAWWT

Scott M said...

How many people watch C-Span with any regularity?

Guilty.

multiuseless said...

Watching the Supreme Court on TV would be like watching other people fish.

Fred4Pres said...

People tend to behavior better on camera. The operative word being tend.

My guess is the Justices enjoy being both unrecognized (mostly) in public and being legal rock stars. They do not want to be public figures on the street.

Fred4Pres said...

multiuseless said...
Watching the Supreme Court on TV would be like watching other people f---.

10/3/11 9:36 AM


A slight modification.

MadisonMan said...

Why do we need to feel good about the Govt, and more importantly, why do people in the Govt want us to feel good about it?

traditionalguy said...

Do we really want a panel of extroverts making friends with us.

Changing the SCOTUS into reality TV with call in focus groups sounds like the perfect tool to trigger a rebellion.

edutcher said...

There's a lot more push for term limits in Congress since C-Span came along.

The Black Robes, and the rest of the Federal bench, might want to think about that.

MadisonMan said...

They like me! They really like me!

Which SC justice is most likely to say that back in their chambers when the lights go off?

ricpic said...

I doubt Kagan believes that a Supreme Court acting to reign in the size and scope of the federal government's intrusion on individual liberty "would make people feel so good about this branch of [the federal] government." The only way to read Kagan accurately is to understand that there's a silent enlightened before people.

virgil xenophon said...

Sorry, cameras will only hasten along the sad trend to not only view the SCOTUS as but a politically-charged Super-Legislature but also make it even moreso as a functional equivalent in terms of its operationalized reality.

MarkG said...

Which SC justice is most likely to say that back in their chambers when the lights go off?

The wise Latina.

richard mcenroe said...

"By 2030 the entire court will look and act like TV weather people. NTTIAWWT"

Can we make it Hispanic weather people? Cuz their weather babes are HAWT.

I'm never not in favor of more visible government activities, unless it's of the 'this is how we build a neutron bomb, senator' variety.

Of course, this administration is more likely to air that and censor the discussions on bank card fees...

Seven Machos said...

I disagree. There must be a space where political figures can say what they want to say without the presence of a camera. The camera changes the actual substance of the whole affair.

I note that C-SPAN was launched in 1979. Since then, our presidents have indisputably been -- for the most part -- intensely charismatic figures and, I think most people would agree (right or not) that our political discourse has diminished considerably. I put it to you, Althouse: these facts are not coincidence.

Henry said...

Althouse wrote: Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court.

A new amendement to the constitution: Every president gets at least one opportunity to appoint a fresh voice.

There are three ways to go about it.

1. Lottery. One justice is knocked off the bench by random drawing, creating the opening. Can the President re-appoint if they wish? Sure, but consider the fireworks when the Senate argues Scalia all over again.

2. Reverse seniority. Oldest goes.

3. Accretion. The fresh opportunity justice is simply added to the current body. A simple regression analysis should tell us what the new stable size of the court will become.

Now we must also determine when the President gets this opportunity. Should it be at the beginning of the term, despite us not knowing if this President will have other chances? Or should it be at the end of the term, when we know that fate his jilted the incumbent? That could get ugly.

Seven Machos said...

Henry -- The executive does not need more power.

Henry said...

I prefer transcripts and courtroom sketch artists. In my perfect world the State of the Union is delivered on tickertape.

Henry said...

Seven - I hope the ridiculousness of my suggestion is self-evident.

Peano said...

And yet, I suspect, that if people had more access to the arguments, we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now.

Another gut intuition from the person who suspected that Barack Obama would unite the American people and implement his hopey-changey agenda.

Seven Machos said...

Henry -- My coffee is just kicking in. I wasn't sure.

Perhaps we should make children Supreme Court justices for a week, just before we eat them.

John said...

I listen to the oral arguments 3-6 times a year when there is a case that sounds like it might be of interest.

Oyez.org has the oral arguments as MP3s, very easy to find and download.

I am not a lawyer but find the process fascinating. Much less lively than what we see on Court TV but much more interesting in its own way.

Each side gets 30 minutes total to put the best possible face on their cases. The Justices get to ask questions.

The only improvement a camera would bring is that I would know which justice is speaking. OTOH, since I listen while driving, I doubt I would ever watch the video anyway.

I would recommend that everyone listen to at least one oral argument, just to get a sense of the process.

Roe v. Wade is one interesting case to listen to.

John Henry

BarryD said...

I think we've gotten really close to the movie "Idiocracy" with our politicians. It's bad enough that we choose Presidents based on their TV presence.

Turning the Supreme Court into another media circus certainly won't improve anything. It will encourage cheers, jeers, and protests in the courtroom, along with a sad helping of Paris Hilton types trying to get on camera during orals.

How about we actually do some of all that stuff Obama promised, with respect to government and legistlative transparency, instead?

Seven Machos said...

My best law professor convinced me of my position. It was during the Lewinsky business. He argued, and I ultimately agreed, that politicians need a space where they can talk to each other privately -- suggest things that may sound ridiculous, bargain, etc.

Even if that conversation is recorded on paper, it's different than being in front of a camera. People simply act differently when they know that they themselves are being recorded. That's a bad thing because it leads to a lower chance of innovation, because innovation is much more likely when a lot of stupid ideas are put forward, and eventually discarded, until a good one actually shows up.

Further, politicians will discuss things privately, no matter what. It's much better to allow them a dignified space to do so as opposed to a backroom.

Scott M said...

along with a sad helping of Paris Hilton types trying to get on camera during orals

Surely you don't mean...no, that can't be what you meant.

(now THAT would be interesting SCOTUS, tho)

G Joubert said...

Why do we need to unnecessarily infuse pop culture, particularly the values of pop celebrity culture, into the serious if not solemn undertakings of the Supreme Court? Look, for instance, at what this infusion has done to our presidential election process. It's now a media-driven beauty contest. One candidate, Christie, is pilloried because his body doesn't comport with what pop culture nowadays says is acceptable. You really want to unleash these kinds of forces of frivolity on the Supreme Court too?

Bob Ellison said...

I support videos during oral arguments. There's plenty of undisclosed discussion. The justices can still trade arguments and essays and discuss things amongst themselves. Currently they are subject to very little exposure, so we don't really know much (sometimes until much later, when someone writes a tell-all) about how they arrive at decisions except for the written decisions themselves.

The arguments against videos mostly come down to asserting that the people, from whose consent the SCOTUS derives legitimacy, are just too stupid to judge for themselves whether the court is doing the right thing. If that's the case, our system of government is at fault. Maybe monarchy would work better.

Officials, and society, benefit from a reasonable degree of privacy and secrecy in how officials conduct their business. The SCOTUS has far too much privacy and secrecy.

J said...

correctio: "And yet, I suspect, that if rational people had more access to the arguments...they would cringe at the legal rhetoric and the evidence-free generalizations that the Black Robe posse relies upon."

Carol_Herman said...

Well, Kenneth Starr sure had his day in the limelight. Talking about Monica ... Seeing that Monica got "examined" by House Republicans ... some of whom (like James Rogan) quickly got bounced out of office by voters ...

As to the way it's done now ... It works FINE! Opinions are published. And, you can even look at opinions side by side.

Sotomayor is supposed to be the dumb, unqualified one. And, Kagan is supposed to be "brilliant."

So up ahead ... we will be able to see how they approach the U.S. Constitution. To bolster their arguments. Where slavery is not boldstered anymore.

I do worry about the lemon tests, the forks, and the plastic reindeer, though.

MarkG said...

Officials, and society, benefit from a reasonable degree of privacy and secrecy in how officials conduct their business. The SCOTUS has far too much privacy and secrecy.

Anyone can visit the court. And as mentioned, the oral arguments are available online.

Videos would provide little value to most people except as red meat for television comedians. The justices are not politicians. The mocking, particularly when it's politically based and in most cases unfair, would add no value. SCOTUS is not a reality show.

Seven Machos said...

The justices are not politicians.

Most certainly they are. This is the strongest argument for private space.

Private space and transparency need not be contradictory. All conversations in chambers can be recorded. The key is to present them in a cool medium -- written -- and not a hot medium, like video.

MarkG said...

If I thought Leno, Letterman, and Jon Stewart were going to mock Sleepy Ruth and the rest of the liberals rather than the conservatives, I might be more in favor of videos.

Hagar said...

Broadcast television corrupts and ruins all that it touches.

MarkG said...

Seven, what has Souter, Sotomayer, or Thomas done that makes them a politician?

chuck b. said...

"Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court."

Just to be clear, Jimmy Carter is the only US President who served a full-term without the "opportunity" to make a Supreme Court nominee.

John said...

Bob says:

"There is plenty of undisclosed discussion"

Huh?

What discussion is undisclosed that the video would show?

The audio is complete and unedited. It is generally pretty clear and easy to understand (even if the points being argued are not always)

What info do you think the video would provide that the audio does not?

Only thing I can think of is, perhaps, body language.

John Henry

Freeman Hunt said...

Bleh.

Less TV-ization, not more.

Seven Machos said...

what has Souter, Sotomayer, or Thomas done that makes them a politician?

1. Judges at the federal level are appointed by the President and consented to by the Senate. This makes them politicians as a matter of fact. Do you say that the Secretary of State -- chosen the same way -- is not a politician?

2. Many judges at the state level are chosen by direct election. Surely you cannot argue that those judges are not politicians? Do you make a distinction between judges who are not chosen directly by the people and those are who are? What is that distinction? Height?

Tank said...

While the intent "might" be good (or not), the result is likely to be:

1. Very few people will actually watch or understand the entire agruments.

2. No net effect on actual legal analysis.

3. People with agendas (everyone) will use excerpts (out of context or not) to embarrass and attack Justices they do not like or agree with.

Thorley Winston said...

Althouse wrote: Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court.

Actually when I looked this up, I found that there has only been one President (Jimmy Carter) who served an entire four-year term without appointing someone to the Supreme Court. Two others died within months of being elected (Zachary Taylor and William Henry Harrison) and the other (Andrew Johnson) served only a partial term when he assumed office after President Lincoln’s assassination.

BarryD said...

"Surely you don't mean...no, that can't be what you meant."

Never let a double entendre go to waste, I say.

Freeman Hunt said...

TV has already ruined culture and elective politics. Why the rush to have it ruin the judiciary too?

Bob Ellison said...

John, the justices do not limit themselves to hearing oral arguments. They also conduct closed-door discussions.

Scott M said...

Never let a double entendre go to waste, I say.

Exactly. My cousin called me a pervert during dinner banter with the extended family. I disagreed, preferring the term conversational opportunist.

MarkG said...

Yes, I'd say elected judges are politicians.

However, I'm using these definitions of "politician" and I'm not seeing a good match to the justices.

A. Shmendrik said...

Perhaps we could throw them a bone in terms of additional compensation for plastic surgery, hair implants, etc. and then tweak the budget for key lighting and even digital processing of the video stream to remove age spots and wrinkles...plus sound shaping to eliminate the wheezing geezer sound and project younger more robust voices...

Seven Machos said...

Here it is, Mark:

3. a person who holds a political office.

chickenlittle said...

...is that they don't want us all checking our how they look, particularly if they look tired and old.

The same can be said for Bloggingheads I suppose. A Bloggingheads regular who goes too long without making an appearance risks the inaudible gasps people will have as they think--"boy, so-and-so-sure has aged!"

madAsHell said...

Judge Judy.....move over!!

How many other dumb ideas does Kagan have???

Scott M said...

How many other dumb ideas does Kagan have???

Once ACA hits the court, we may well find out.

MarkG said...

I don't think seats on the Supreme Court are political offices. Not to say that this is the best source, but forgetting to put "judge" would be a huge omission. I'd happily look at something that says otherwise.

J said...

All "chambers" conferences--whether in the SC,or Podunkville municipal court-- should be on tape and available to citizens, regardless of what puerco-in-chief Scalia thinks. That's ..jeffersonian tradition.

Seven Machos said...

Indeed. Jefferson and his constant taping. Those explicit sessions with Sally Hemmings are still fun to watch. Shame about the picture quality though.

Dustin said...

This is good. That Kagan is still way out of step with her peer Justices means she is unlikely to persuade any of them.

Is there a conspiracy theory that Kagan and Obama are going to somehow lead to single payer with a selective strike down of sections of Obamacare?

It's not like the GOP will be able to repeal Obamacare without a powerful Senate bloc.

caseym54 said...

One other thing comes to mind: the use of SC video for partisan purposes. Consider the current campaign against Thomas and Scalia, with video aids. Or what might be made of Justice Ginsberg's frailty under a President Perry.

While video could be used to promote the virtues of the court, experience shows that this is not what happens.

Henry said...

We can call it MTV - Moot Television.

And the very first video that will play is "Video Killed the Radio Star" sung by Nina Totenberg.

One of Totenberg's real talents is the relaying of statements made in oral arguments. So much for that.

Scott M said...

Shame about the picture quality though.

What do you expect after Grant's bumbling VP accidentally magnetized the whole collection?

J said...

The inference is a bit subtle for a zionist-moron such as you, Nachoes, but maybe you can get it (like ,the USA is a democracy--or even republic if you like. But not a judicial monarchy,as Jeff. and the founders well-knew ).


Regarding yr typical 10th grade moralist brainfart, Sally was 3/4white anyway. House..er...maid. So no big deal. yes,Jefferson had moral flaws--no shit. Compared to say Napoleon....a gent.

Seven Machos said...

Did Jefferson have a great plan to eliminate the poor? Whatever happened to how you were going to tell us all about that?

J said...
This comment has been removed by the author.
J said...

Another of your typical non sequiturs, Nachos--not to say historically naive, and moralistic--evenPC!Maybe yr really an Obama guy eh Nachos, like many of the so-called teabuggers here.

I'm not making excuses for Jefferson or any early American politicians. They were flawed, in yr little sunday school terms. However Jeff. sided with the jacobins with his pal Paine. Ergo he was aware of Les Mis. --certainly more than say..Hamilton or English tories

Seven Machos said...

What about John Edwards's plan to eliminate the poor? And what about the freemasons? I heard those masons are a Jewish bankers' conspiracy. Is that true?

chickenlittle said...

Perhaps televising judicial workings should begin at the State level, as an experiment.

Certainly a webcam recording would have saved Wisconsin taxpayers lots of shifty whinnying had the alleged chokehold been caught on tape, even in grainy B&W.

ic said...

Leftists would subject their enemy-justices to wall-street-style protests whenever they lost. They did that in Wisconsin,... Anybody disagrees with them are enemies to be taken down at all costs. Union goons will muscle in. The Court will look as silly and as political as Congress. US Supreme will become Wisconsin Supreme. Yuck!

Some institutions need an air of mystique to command respect.

chickenlittle said...

The Court will look as silly and as political as Congress.

That's actually a good point. Look how much time and effort the average congresscritter now puts into hairstyles. It's not at all fabulous and squanders goodwill.

J said...

What about it, Nachos? Has nothing to do with the topic does it. You should google it--maybe after yr tweek buzz ends,wicca grrl--andlike after spending a few days trying to understand it, offer your critique. And no ebonics Ayn Rand quotes allowed, basura (or your secret hero Obama)

Martha said...

I agree with Tank and Ic.

The Supreme Court should be allowed to retain its august majesty which necessitates conducting it's business out of the glare of tv cameras.

The public is ignorant of the carefully defined legal issues that are considered in a Supreme Court case. During the year that my son clerked for a Supreme Court justice I paid attention to everything online and in the media about each case and still I, one with no legal training, was amazed to be told by my son that I had repeatedly misconstrued the import of what was at issue.

J said...

You mean you're agreeing with your other sockpuppets Martha-mormonic? Your idiotic, fact-less drivel and mendacity gives you away instantly.


Chambers conferences on tape. Gonna happen. And...ending judicial/DA immunity.

Lance said...

I know I would love the ability to make clips from the video to incorporate into blog posts that discuss and explain the issues.

You (and others) already do that, using the transcript. What difference would video make?

I already hate watching/listening to political speeches. I don't listen to oral arguments and doubt video would be any more interesting.

Scott M said...

What difference would video make?

Well, for one, it might have shown us whether or not Prosser went all Wayne Brady and choked a bitch.

John said...

Bob said:

John, the justices do not limit themselves to hearing oral arguments. They also conduct closed-door discussions.

Of course and it might be interesting, if of debatable utility, to hear/see those.

I thought we were talking about oral arguments.

To those who have said that few would understand the oral arguments, try listening to a couple. In my experience they are very straightforward and easy to follow and understand. Occasionally they will veer of into difficult to understand jargon. That is the rare exception, not the rule.

John Henry

John said...

Hey, J,

Do they televise the high court's proceedings down in Honduras?

If so, how does that work out for you?

John Henry

Seven Machos said...

You sure nailed Martha dude. Think she's a Jew?

Scott M said...

Do they televise the high court's proceedings down in Honduras?

Only until the generators give out. Then it's a fifteen mile walk to the nearest gas station.

Methadras said...

No cameras in the SCOTUS. It would turn it into a circus. How many more examples do you need for proof that this would happen? OJ, Casey Anthony? Many more to remain unmentioned?

Martha said...

J said...
"You mean you're agreeing with your other sockpuppets Martha-mormonic? Your idiotic, fact-less drivel and mendacity ....."

"Mormonic" and mendacious?

Factless drivel?

J doth project too much.

Naut Right said...

I think this makes a perfect and airtight case for no cameras in the court room. I do not care if the justices look like Cousin It, Jaba the Hut, Yoda and Darth Vader, Mr.Spock, Captain Kangaroo, Bozo and Crazy Guggenheim, Soupy Sales and Madonna. Your reasonings for, were pitiful and trite.

yashu said...

SCOTUS is not a reality show.

But it might make for a great wacky sitcom! This discussion reminds me of the "Supreme Folk" bit from Chris Guest's "A Mighty Wind"-- scene 8, starting at 1:50, here.

Simon said...

Ann Althouse said...
"And yet, I suspect, that if people had more access to the arguments, we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now. "

If that argument is correct, it should be equally true of televising Congress (it has proven not to be) and of the making available audio of arguments (it has not proven to be). Do proponents of cameras insist on pretending that the issue must be considered from original position in vacuo—as if we had no relevant experience—because they would be forced to concede that that experience undercuts their case, or is there some more attractive reason?