And now for a hilarious scene straight from the courtroom of the United States Supreme Court:
MR. BARNHOUSE: The lawsuit would be — the lawsuit itself would be property, but the — but any recovery would not be property until it became choate, until there was an amount of money assigned to it.
JUSTICE SCALIA: There is no such adjective — I know we have used it, but there is no such adjective as “choate.” There is “inchoate,” but the opposite of “inchoate” is not “choate.”
MR. BARNHOUSE: All right.
JUSTICE SCALIA: Any more than the — I don’t know.
– From Hemi Group, LLC v. City of New York, argued November 3, 2009
Well, maybe you had to be there. The audio recording will be available next year, but the joke will be stale by then and so will the news. And we’ll never get to see the look on Mr. Barnhouse’s face when Justice Scalia informed him of his linguistic misstep.
While you can watch the Senate or the House of Representatives duke it out live on C-SPAN, if you want to follow the action in the nation’s highest court, you have to read the transcripts. The Supreme Court does not permit video taping or streaming of its sessions and, except in rare instances, does not release audio recordings of oral arguments until the following term. Same-day coverage of arguments is available only to those able to show up in person or willing to slog through the written records.
Photographers and cameras were almost universally banned from federal and state courtrooms after the 1935 trial of Bruno Richard Hauptmann—accused of kidnapping and murdering the son of the famous aviator Charles A. Lindbergh—devolved into a media circus. While it is impossible to know exactly how the jurors were influenced by the press frenzy surrounding the case, many believe that the ubiquity of reporters interfered with the court’s ability to deliver a fair and impartial verdict. In the 1965 case of Estes v. Texas, the Supreme Court confirmed this popular opinion, holding that the presence of cameras and microphones at a pretrial hearing was a violation of the defendant’s due process rights.
In 1981, however, the Court reversed its decision, ruling in Chandler v. Florida that the use of video and still photography in the courtroom was not necessarily a violation of the defendant’s rights. In the time between 1965 and 1981, video cameras had become far more common. Given people’s increased familiarity and comfort level with cameras, worries that cameras would intimidate defendants and witnesses had diminished. Since then, all 50 states have found ways to allow cameras in at least some of their courtrooms without compromising defendants’ rights. Federal courts, including the U.S. Supreme Court, have not.
Cameras were allowed into federal courts on an experimental basis from 1991 to 1994. Following the experiment, the Federal Judicial Center reported that the presence of cameras had little effect on the administration of justice and recommended that cameras be allowed for all civil proceedings in federal courts of appeal and district courts. In 1996, the U.S. Judicial Conference voted to let each circuit decide whether or not to allow cameras in its appeals courts. Only the Second and Ninth Circuits have approved their use.
The courts provide little justification for their reluctance. While the Supreme Court occasionally bends a little and allows audio recordings to be released immediately, rather than during the following term, it has yet to give any explanation of how it decides which recordings it will release.
Former Justice David Souter once said, “I think the case [against televising court proceedings] is so strong that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body.” He explained that when he had served as a judge in New Hampshire he had felt that the presence of cameras affected his behavior. He said that he worried about comments being taken out of context on the nightly news, and therefore spoke less frankly than he otherwise might have. Other justices have echoed the sentiment.
But news organizations already can, and do, quote justices in context and out of context using written transcripts. The justices, whether they like it or not, are high public officials. Public discussion of their work, accurate or otherwise, comes with the job.
While the traditional arguments about defendants’ rights may still apply in some sensational cases, those cases are rare, particularly outside of the criminal courts. Fair-trial concerns should be irrelevant in appellate courts, including the Supreme Court, because there are no jurors or witnesses to be influenced by the cameras.
The Supreme Court expects the public, the states and the elected branches of the federal government to respect its rulings even when people passionately disagree with them, as in Roe v. Wade or Bush v. Gore. But this respect comes at a price—openness with the public—that the Court has not been willing to pay.
Of course there are aspects of court business, such as private conversations between justices, which should not be made available to the public. Nobody expects the president to broadcast the meetings he holds in the Oval Office with his chief of staff, or Congress to put cameras in party caucuses. But executive branch agencies and congressional committees generally do their information-gathering and rule-making in front of the public. Oral arguments are a key part of the Court’s information-gathering and rule-making, and the public should expect the same access to these arguments as it has to executive and legislative hearings.
Though the justices may persuade themselves otherwise, the courtroom of the U.S. Supreme Court is not the summit of Mount Olympus, where gods gather to decide the fate of mere mortals. It is a place where important public officials perform the public’s business. The public has every right to see it without having to make a pilgrimage to Washington, D.C.
Justice Souter has retired. It is time to retire his “over my dead body” stance as well.