November 16, 2011

C-SPAN chairman Brian Lamb asks Chief Justice John Roberts to televise the Obamacare oral arguments.

Though the Court releases audio recordings of oral recording, it has never gone on TV. Should Court accept cameras for this momentous case?
"We believe the public interest is best served by live television coverage of this particular oral argument," Lamb wrote. "It is a case which will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign."

Lamb added that "a five-and-a-half hour argument begs for camera coverage." He said that "interested citizens would be understandably challeged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating."

Justice Antonin Scalia criticized the idea of televised Supreme Court proceedings during a recent appearance before the Senate Judiciary Committee. "For every ten people who sat through our proceedings, gavel to gavel, there would be ten thousand who would see nothing but a 30 second takeout from one of the proceedings" he said, "which I guarantee you would not be representative of what we do." Scalia added that such soundbites would leave viewers with "a misimpression" of Supreme Court operations.
We already have the soundbites! And audio clips are played on radio and TV all the time. And we have text transcripts, from which we select quotes. So what is Scalia talking about? Perhaps it's that more people will pay attention if there is video, but how dare he hold his position of power and argue that his work should be monitored by fewer people? I think the real reason is that the Justices don't want us to see how they look as the sit for hours listening to arguments. They'd look grumpy and drowsy and puffy and wrinkly. They'd have to wear makeup. But even with makeup, they'd be far less camera-ready than the talking heads we're used to seeing on camera.

I've blogged a few times about the Supreme Court going on TV:

In "Where is the 9,000-foot cow?"/"What do you think about Satan?"/"What did James Madison think about video games?," I disagreed with Justice Ginsburg who noted some weird questions that Justices have asked at oral arguments and used them as a reason to exclude TV. Yeah, we'd be able to make hilarious YouTube videos splicing together things that sound ridiculous ripped out of context. But it's important in America to make fun of people who wield power. If you can't take it, you don't deserve the power. Judges may like us to think that they merely humbly channel the power that inheres in the law, so there's no point in looking at them as if they have a will of their own. We'll be the judge of that.

In "If everybody could see this, it would make people feel so good about this branch of government and how it’s operating," I quote Justice Elena Kagan, who is quoted by Kenneth Starr in a NYT op-ed arguing for Supreme Court TV. I said I thought that despite the complaints about how people would use video in a superficial way that "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."

In "Why Congress should impose TV cameras on the Supreme Court," I said I thought TV cameras would put healthy pressure on the Justices who cling to their positions — which they hold for life under the Constitution — as they advance into old age.

So, I've been in favor of Supreme Court TV for a long time. Is it a good idea for the first televised argument to be the most momentous one? I'd say no, which is why I would recommend that the Court bring the cameras in now and make video the norm, before the big 5-and-a-half-hour Obamacare extravaganza.

(Link to the C-SPAN request via Instapundit.)


traditionalguy said...

After TV cameras, the Supreme Court would quickly become the next american institution to be populated only with attractive blonde law girls.

Great for The Professor and Ann Coulter, but still not what we want for a Judicial image.

vet66 said...

It would be interesting to watch the though process from the lawyers involved defending their position. Be careful what you ask for Lamb, you might get it.

AJ Lynch said...

I vote no because our focus, too often, is on the Beltway & its numerous Buffoons [Congress & Senate & Cabinet Members] and we expect them to solve our problems.

States rights is our path back to solvency and to tone down the country's political tenor.

Roger J. said...

Professor: totally agree with your point re if we go the cameras route start with a really boring admin law case--that will immediately turn most viewers off.

I try to wade thru commenter posts on VC, and frankly, legal analysis is more than I can digest. If we go the cameras route will have the totebag, gretta, Dalia, Johnathan Turley and the other legal gas bags now populating cable news rendering their opinions and giving the justices no forum to respond.

Bad idea over all, but if TV coverage is the way to go, lets do it your way.

Roger J. said...

BTW: my post was in now way meant to denigrate the efforts of C-Span which is probably the most unbiased coverage on the frequency spectrum.

I understand their motivation, but question the unintended consequences.

On the other hand, such coverage might resucitate the career of Larry Tribe who I am sure would be a commenter on one of the cable news shows.

WV: (really) sucks

Richard Dolan said...

The ban on televising these oral arguments is a strange, and like affirmative action, a time-limited position. The time limit here is probably measured by the life-span of a few of the older justices.

The current approach -- allowing a few spectators into the courtroom on a rotating basis, to watch parts of the oral arguments while releasing transcripts and audio of the arguments -- can't be squared with a ban on allowing live video (or live audio, for that matter). The ban on video accomplishes nothing, and does so at considerable cost to the institution's reputation (exactly what the ban is supposed to avoid).

Oral arguments in NY's highest court have been televised live for some years now (the feed is accessible from the Court's website), and the Court maintains an archive of those webcasts. I've found it useful to watch a few when I've been preparing for an argument in that court, and I think that's quite common among lawyers who handle such appeals. The same is undoubtedly true in many state courts of last resort (including, if memory serves, WI) across the country.

Given the collegial nature of appellate courts, it's unlikely that the SCOTUS will permit video coverage so long as one or two justices object strongly abasent a strong push. It may well be that, given those objections, the practical solution is for Congress to impose the requirement, thus letting the majority of the justices avoid having to impose it on their unwilling colleagues. That's not such a great move in separation of powers terms -- the internal organization of each branch really should be a matter for its own determination -- but it may be the only way forward. Perhaps the imminent threat of Congressional action could make the objecting justices reconsider whether sticking to their objections might do more damage that good to the independence and public standing of the judiciary.

Ned said...

Bad idea...look at TV "news" now and just imagine the MFM and the liberal gas bags analyzing every expression/posture. TV is completely different from aduio/typed transcripts...way too easily manipulated. What, you don't think the networks would cut and paste???

Roger J. said...

Mr Dolan--your post is interesting and makes some exellent point. But precisely how could the legislative mandate TV coverage? under what consititutional authority? Not meant to be a contentious question, just a real life question. IMO separation of powers effectively insulates the SCOTUS--but I am woefully uniformed on things like precedent.

Original Mike said...

Not only do I not think the SC should be televised, I think they should discontinue televising Congress. Let them focus on their job, not grandstanding.

Lucius said...

If God gave me the choice to do a system restore on Humanity to 1788 AD, so help me . . .

Scott M said...

More light, not less. While he's right about the cherrypicking, it's a fact of life in our society. The weight of history is against him on this one. History itself is taught as a series of "bites".

Roger J. said...

Mr Dolan--your forebearance sir, but could the legislative branch eliminate funding for judicial branch? Thats the only real power I see that the legislative branch has. They could, of course, propose a constitutional amendment, but that has got a lot of hurdles.

ndspinelli said...

I have long thought Brian Lamb is not only the best interviewer on television, he is the most unbiased person in media. And, I agree w/ Lamb 100%.

wv: gensult..insulting someones gender

Richard Dolan said...

One further thought. The ban on allowing video of federal court proceedings has a more practical impact in the lower courts. In NY, for example, those entering the SDNY courthouse are required to check their cell phones, lap tops and other electronic devices with the court security officers upon entry (unless you get a specific order from the judge certifying that they are needed for a case on trial). The ostensible purpose is to preclude anyone from broadcasting court proceedings using a cell phone or similar device.

Strangely, the policy is not uniform. In the EDNY (its courthouse is located at the Brooklyn end of the Brooklyn Bridge, while the SDNY is at the Manhattan end, less than a mile away), lawyers are allowed to bring these electronic devices into the courthouse. But the policy of prohibiting any attempt to record or broadcast the proceedings is still the rule even there.

The strangeness of these rules came into play in the ND Cal case involving the proposition adopted by the voters banning gay marriage. The district judge wanted to televise the proceedings; the SCOTUS intervened to prevent it. During the fuss over whether the proceedings would be available via video, there were lots of insinuations about the alleged motives of the judges -- both those who wanted to allow video and those who prevented it. That back-and-forth about motives probably did more to impugn the reputation of the judiciary than any broadcast of the judicial proceedings ever could.

Richard Dolan said...

ROger J:

It would be quite easy. All it would take is an amendment to the applicable rules of procedure. Changes to those rules are typically recommended to Congress by the Judicial Conference, but whether to adopt any such changes is ultimately up to Congress. And nothing requires Congress to wait for such a recommendation.

Roger J. said...

Richard Dolan--thank you, sir, for your explanation--much appreciated.

Earth Girl said...

I think it is a horrible idea. I don't want the justices to have to worry about make-up and the lighting, etc. Focus on the case! let us learn from the audio and transcripts. Television has increased the importance of appearance in our elections, sometimes to the detriment of selecting the best candidate. Perhaps I am biased because I watch perhaps 5 hours of television a year!

Roger J. said...

Earth Girl: I gave up watching TV two years ago--it is quite liberating

Hagar said...

No way, Jose!

If you let Brian Lamb and C-Span in, how are you going to keep David Gregory and MSNBC out?

And the commentary would be about what the female justices wore and what the biggest Foghorn McLeghorn bloviated.

Scott M said...

I would much rather see extended wall-to-wall coverage of the supercommittee "deliberations". If you've been paying attention, it highly unlikely there's going to be any sort of deal. In fact, it looks like they're going to double-down on punting the issue further down the road.

Congress sent these clown targets and expected them to work out the details on how to get there. It looks like the best we can hope for are targets from the supercommittee as they send it back to Congress to work out the details on how to get there. Double down on stupid.

What's more, the sequestrated cuts that are supposed to automatically take place, including deep cuts to entitlements and defense, are now being treated like "we were just bluffing".

This is very nearly as infuriating as Ted Kennedy's flipflop on how replacement senators get picked in MA (governor when it's a Democrat, the people when it's not).

Dave said...

TVs in court rooms would hype up the political/theatrical aspects of the court, bringing out the worst in the lawyers and the judges, just like it did for the OJ trial. Bad idea.

Roger J. said...

Careful Hagar--you are close to dissing my favorite Looney Tunes charactger: Boy? I say Boy? go away, you bother me. :)

edutcher said...

Oh, I get it.

This is what turns you on!

So Meade is all for it.

But 15 hours of Ginsburg napping and the Wise Latina and Kagan yapping???

The rest of the country would swear off sex until 2020.

Roger J. said...

Ed: I am not prepared to go that route :)

Scott M said...

But 15 hours of Ginsburg napping and the Wise Latina and Kagan yapping???

Kagan won't be there.

Shanna said...

What's wrong with televising the static pictures of justices with the audio in the background? It worked for Bush/Gore.

Kirby Olson said...

Since the courts now MAKE all of our laws, and since Democracy has been otherwise scuttled, we could at least see how the law is being MADE if it were televised. The courts have taken over government. Let's televise their revolution.

RAS743 said...

Is is possible that Scalia is concerned about the video of the proceedings being cherry-picked by agenda-driven reporters?

ndspinelli said...

Dave, The OJ trial didn't being out the worst in lawyers and had some of the worst. What you see is what you get.

wv: bette...a French wager

Original Mike said...

"Kagan won't be there."

In your dreams.

Scott M said...

Oh, I know...I just wanted to say it and imagine there would be some semblance of honesty involved.

glenn said...

Just what we need. 9 more people washing their egos on TV. Enough already. Not to mention all those lawyers.

Original Mike said...

"9 more people washing their egos on TV. ... Not to mention all those lawyers."

There's the real problem.

rhhardin said...

The point is to prevent the advocates from playing to the cameras.

Keep the soap opera in the nightly news rather than in the courtroom.

Methadras said...

Any camera in a courtroom most certainly will make it a circus.

Rick Caird said...

I disagree with Althouse that is would be a good idea to televise the oral arguments. As far as I can tell, the oral arguments rarely influence the actual decision. It is the briefs and the lower court record that are the inputs. The oral arguments are more theater than argument.

As others have said, we gain nothing from an analysis of the Justices questions and facial expressions. Better to leave this sleeping dog lie.

MadisonMan said...


5.5 hours is too long. SC Justices will have to snooze, and I don't want to see opponents of them taking advantage of that.

The C-Span feed for Congress should be a simulcast of a birdseye view of the whole chamber, as well as a close up of the person's face who is talking. That way, we can see who's talking, and we can see who they are talking to.

SPImmortal said...

The real reason they don't want cameras in there is because people behave differently and think differently when on camera. It's peer pressure on steroids.

Such an effect would have deterious consequences for the proceedings and the subsequent decision.

Kirk Parker said...

Lance Ito.

Amartel said...

Courts are for resolving legal disputes, not for education, edification, or entertainment. Expanding the scope of the court's mission will result in unintended consequences, including but not limited to increased costs. The television camera is intrusive and becomes part of and influential in the process. Example: OJ. Another Example: Effort by judge in Prop 8 case to get the trial televised. Whether or not you approve of that case and the judge in that case, he clearly wanted that thing televised in order to affect the outcome. Furthermore, practically speaking, most people would just watch the summary of the arguments on their partisan network of choice, which would slice and dice and spin the footage to support their particular perspective. Personally, I don't mind that there's one branch of government which is required to make itself clear and coherent (in its reported decisions) and where some work is required in order to understand the decisions.

Bender said...

If anyone is going to act like a buffoon -- advocate or justice -- playing to the cameras, then so be it. The public should see that.

Ultimately, though, how an attorney arguing before the Court acts is determined by the case and their duty to zealously try to influence the justices with the strength of their arguments, and not look good on the Nancy Grace show.

Likewise, the performance of a justice rises or falls entirely on the basis of his or her rulings and the opinions they write.

Justice Scalia does have a point about short clips and soundbites being misused to distort and misrepresent what actually happened. But perhaps any problems in this area could be alleviated by releasing the video only at the time the opinion on the merits is handed down.

The written briefs are matters of public record. The oral arguments themselves are public matters. A visual memorialization of that publicly-made argument, as opposed to merely a written transcript or audio recording, is merely a part of that public record.

J said...

Big Tony S probably doesn't want to be caught on cam pinching the butts of the SC hotties like Kagan, Ginsburg Sotomayor. (Or is it ..Alito, Thomas, et al).

Either way the sheeple have the right to watch Black Robe Follies on TV.

Amartel said...

Televising congressional hearings has not improved the process one bit and, arguably, has made it worse, more partisan, blowhardy, and windy, more grandstanding for the idiocracy, more double-talking evasiveness, with no substantive affect on content. Example: The fact that Justice Kagan was caught (probably) lying in her confirmation hearings does not seem to be stopping her from participating in the Obamacare hearing. Where is it written that the people have "the right" to see judicial proceedings on TV?

nevadabob said...

The Supreme Court vacates this law, or we have no further need of a supreme court.

The court is deciding its fate.

Carol_Herman said...

When David Boies and James Baker went toe-to-toe, back in 2000. Arguing for and against the Florida Supreme's decision NOT to count all the State's votes ...

Which was, in essence, probably the best ever appearance before the Supreme's ... I don't think it was televised.

But it appears in that contest that the 73 year old James Baker won over David Boies' arguments in a rout. It was said David Boies fell short, because he didn't get enough sleep.

I like Brian Lamb. I don't think he's at all threatening. C-Span. And, C-Span 2 ... have proven to be excellent programming.

Of course, if the whole 5+ hours go by without Clarence Thomas asking a question. And, perhaps Ruth Bader ginsberg falling, face down, asleep ...

It's very possible that there are substantial reasons you wouldn't want cameras to catch this.

But what if the court officers don't notice the surreptitious activities of one guest in the gallery?

To be on TV. Or NOT to be on TV, is no longer the question.

Going viral on the Internet, however, means individuals will be pitted against the Networks.

I can't see the networks either controlling the debate. Or even winning.

(Oh, and I never believed the Occupy Wall Street bullshit. They didn't even have a total of 2000 kids participating! What you don't know about NYC ... is what occurred at the Apple Store ... with streets full of tents. As people got in line weeks before!)

I've stopped believing what I hear reported as news.

Carol_Herman said...

Ann, you could live-blog it!

I'm sure you'll recognize the participants by voice.

And, the rules!

The 9 justices can jump in at will. The lawyers get bombarded.

But, basically, you can identify the flying arguments. And, rate them.

Besides, both Thomas and Kagan are being asked to recuse themselves.

So before we get to the hearing ... the idea of "recusal" could be brought up to date, no?

Radio did wonders for broadcasting sporting events.

Reagan was so good at this ... If you put him in a room, with a mike. And, he was all alone. He could bring a ball game to life.

Legal arguments don't measure up to talking about a batter coming to bat. And, then the whalloping "swing." And, the announcer saying ... It's going. Going. Gone.

How come you can do that for baseball, but you can't do that for the law?

Carol_Herman said...

Did you know Judge Judy is more popular than any of the Supremes?

Carol_Herman said...

This is Constitutional Law.

I can't imagine law professors who teach Constitutional Law (except at Harvard where Obama shines a candle on perverted nonsense taught, instead.) What happens when law students are asked quest6ions where their answers will be graded?

Don't they hit the libraries?

Heck, what's ahead? Probably a lot more Google searching ... than studying old law books at the library.

But no one is discussing this.

If there was horse race coming, there would be odds.

What are the odds, here?

And, why would Anthony Kennedy want to sign on, I'd like to ask, to another KELO?

Oh, by the way, IF Kagan does not recuse herself ... and there's now a RECORD of her emails, and other writings. Where she just loved Obama, and his "care" package.

As broads go. And, she was very ambitious, how stupid is Kagan?

What if because of her pre-determined views ... she gets called on the carpet, not just of "public opinion." But an Impeachment Hearing?

Oh, because you've never seen one ... you feel it can't happen, here.

If that's so. Then I disagree.

I think Kagan can be challanged. And, I don' think Harvard, where she got credentialed, taught her very much about disguising her opinion enough, that it will come out "scholarly."

Oh, yeah. And, this one is decided BEFORE the next election.

As to "popularity" ... Congress doesn't have any. Adding "vaginas" just adds sluts.

Do women have any idea of the stakes?

gbarto said...

I think it's interesting that we're looking to the Supremes - or any court - to resolve this. There was a time when maybe some suckers believed courts were about justice, even when politics came into play. But when Teddy Kennedy talked about how Robert Bork's presence on the Supreme Court would destroy America, it gave the lie to the notion courts are anything other than another political forum. And if you look at how every court decision on Obamacare leads with an accounting of who appointed the judges, it's quite clear that whatever the talking heads claim when a ruling goes their way, they really see the court as just a sort of superlegislature, maybe like the Senate when Senators were appointed.

You can televise it or not, I don't care, but if anybody believes this case is going to be about justice, they're nuts. It's really nothing more than the highest stakes partisan battles being fought out over a couple decades of appointments, as opposed to the biannual elections.

Simon said...

Since the press just isn't taking the hint, and since some members of the court are fond of foreign law, may I suggest that we try a more emphatic way of telling the media "no"? In England, at the state opening of parliament, Black Rod goes to the House of Commons to summon them before the Crown and the Lords, whereupon the door is ceremonially slammed shut on him to symbolize the Commons' contempt for and independence from the Crown. (Watch it.) Perhaps the Supreme Court should annually invite an ABC journalist with a camcorder to the first tuesday, whereupon he can be ceremonially wedgied and thrown into the fountain avec caméra?

Simon said...

And of course, it's totally preposterous when you see television journalists talking about how beneficial it is for the country to have cameras, or how it excludes the little guy to keep them out, as if anyone on the planet is dim enough not to see the agenda. Brian Lamb wants cameras in the courtroom because he wants CSPAN to carry the feed. ABC's anchor, I forget his name, wants cameras because he wants to run clips on his show. ThinkProgress wants cameras in the courtroom because they want to take three second cutouts to make justices look bad.

But all this is absurd. Televising the arguments is a stupid idea made worse when it's pushed by lazy journalists.