The Supreme Court’s review of the Patient Protection and Affordable Care Act is one of its most closely watched cases in decades, a fact of which the justices are well aware. They have blocked out a remarkable 5 1/2 hours for oral argument in March, with a decision likely by June.
This case will be the most elaborately argued in more than a generation. Most cases get only an hour of argument. Bush v. Gore, which decided the 2000 presidential race, received 90 minutes. The longest argument in recent memory was four hours, in the 2003 hearing over the constitutionality of the McCain-Feingold campaign finance law.
But very few Americans will actually have a chance to watch this “closely watched” case unless the High Court makes a surprising, and unlikely, exception to its ban on live broadcasts of its proceedings.
If ever a case cried out for live national coverage of oral arguments, this is it. Every American has a major stake in the future of the Obama administration’s hard-fought overhaul. The court’s decision is likely to have a major impact on the presidential race that will be reaching full speed by next summer. Ultimately, the case is about defining the limits – if any – of the federal government’s power to regulate the business and spending decisions of every resident of this country.
Yet the court’s default position is still “no live coverage allowed.” A handful of lucky or well-connected spectators will witness the argument in the Court's ornate hearing room. Transcripts of the arguments will be available after the fact. Audio tapes will not be made available until the Friday of the week following arguments. No still or video photography will be permitted at all.
There is no principled defense of the court’s position. It serves neither the country nor the Supreme Court well, and it is long past time for the Supreme Court justices to let America watch what happens in “their” courtroom, which is, of course, actually our courtroom.
In a letter imploring the court to relent on its camera ban, C-SPAN chairman and CEO Brian Lamb wrote, “The Court's decision to schedule at least five-and-a-half hours of argument indicates the significance of this case.” Lamb goes on to say, “[…] a five-and-a-half argument begs for camera coverage – interested citizens would be understandably challenged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating.”
C-SPAN is not alone in arguing for cameras in the courtroom in this case. Sen. Charles Grassley, R-Iowa, has asked Chief Justice John Roberts to provide both live audio and video coverage of the arguments. In a letter of his own, Grassley argued, “Modern technology makes televising the proceedings before the Court simple and unobtrusive. […] Letting the world watch would bolster public confidence in our judicial system and in the decisions of the Court.”
I have previously argued that the court's perception of itself as exempt from public scrutiny is flawed. Nobody's right to a fair trial is at issue; there is no risk of a witness or juror being intimidated. Like all appellate courts, the Supreme Court works in the typically dry realm of precedent and principle. The only risk to the public of broadcasting every Supreme Court argument is that of boredom. When the health care law is debated, even that risk will be absent.
The Court's refusal to allow its work to be broadcast boils down to just three things: arrogance, stubbornness and foolishness.
It is arrogance for the justices to believe that they are the proprietors, rather than the custodians, of the Court and its work, accountable to no one. They confuse their lifetime leasehold on a court seat – granted to immunize them from personal and political pressure – with ownership of the Court and its business. They forget to think of themselves as public servants, and thus discredit and diminish both themselves and the institution.
It is stubbornness to believe that because the Court has resisted the trend toward openness in government for the past several decades, that it has been right to do so.
It is foolishness to believe that justices can continue to behave as they do without consequence. Already, a series of chief justices have complained about the excessive number of vacancies on the federal bench and the failure to adequately fund the court system, yet they persist in maintaining the judicial branch’s opacity and a lack of accountability; moreover, they demand that the public, through its elected representatives, finance the courts without being able to watch what happens inside.
If justices want the public to support the court system's work, they need to let the public see what the courts are doing – and the Supreme Court is the best place to start.
Some of the Court seems to recognize this, especially the newer justices. Justice Elena Kagan said, in her remarks to the Apsen Institute this spring, that while she understands why some of her colleagues disagree, “[…] it's such a shame actually that only 200 people a day can get to see it and then a bunch of other people can read about it. Because reading about it is not the same experience as actually seeing.” Justice Sonia Sotomayor has also appeared supportive of cameras in the courtroom. However, their opinion is still the minority view, and it seems after decades that the current majority is unlikely to change without external motivation.
The public could demand that Congress intervene. An aggressive approach would be to pass legislation requiring some or all federal court proceedings to be broadcast. The judiciary would no doubt resist the perceived encroachment on its own prerogatives as a separate branch of government.
A less assertive response would be for the Senate Judiciary Committee to refuse to approve any Supreme Court nominee who refuses to pledge support of an open-courtroom principle. This is not the same as demanding fealty to a position on an issue, such as abortion rights, that may be litigated before the Court. This is a question of how a nominee intends the Court itself to operate, and it is fair for Congress to insist that the Court operate on the same standards of public openness to which the legislative branch holds itself.
There is no threat that broadcasting the Supreme Court's oral arguments will affect the quality of its work. The justices are already firmly convinced of their own wisdom, and they already shrug off all sorts of Monday-morning quarterbacking. The only thing that would change with broadcast of the Court's proceedings would be that you and I, and all who have a stake in whatever happens there, will be able to see it as it does.