On September 19, the British Supreme Court held oral arguments over the legality of Prime Minister Boris Johnson’s suspension of Parliament. The Prime Minister prorogued Parliament in order to sidestep any opposition to his plan for Brexit. The Court, in a landmark ruling on constitutional common law and separation of powers, held that the suspension was unlawful. Equally interesting was that over four million people livestreamed the first day of oral arguments, surely interested in an issue that has dominated public discourse. The British Supreme Court has been in existence for a decade, all the while permitting video recordings of its proceedings. So too has the Canadian Supreme Court permitted video recordings for about three decades. But in America, our Supreme Court does not allow any video.
At their confirmation hearings, several current Justices expressed openness to televising court proceedings. Clarence Thomas stated he had “no objection to cameras”; Ruth Bader Ginsberg said “I have no problem with it”; and Elena Kagan went as far as to say “it would be a terrific thing.” The two newest Justices both declined to take a definitive position but said they would approach the issue with an open mind.
However, after being on the Court for several years, many Justices changed their opinion. Seven of the nine Justices, excluding Kavanaugh and Gorsuch, have publicly stated they are opposed to cameras in the Supreme Court. This near unanimity begs the question: why?
Opponents offer a couple key arguments against televised proceedings. The first is tradition; the court has worked effectively for centuries without cameras and, as a conservative institution, is reticent to change. Second, media politicization of the court through soundbites may tarnish the integrity of the court by unduly influencing both Justices and advocates, leading to grandstanding or self-censorship. Not to mention a few recent public demonstrations in the court have highlighted the interest in avoiding televised argument.
When put to the task, however, the case for cameras is much stronger than the case against them. Though it’s true that the Court has no duty to inform the general public, Americans have a compelling interest in greater access. The 6th Amendment guarantees public trials. Today, the only meaningful form of public trials is through provision of both audio and video to the public. The legal community, including many Justices, often lament a lack of civics education in our country. What greater lesson in civics can there be than to bear witness to the solemnity of the highest Court? With cameras, people may be more willing to seriously engage with the nuances of important issues in our country. The staggering viewer participation in the recent British Supreme Court livestream suggests that strong public interest exists. There is data to back this up: polling has shown that three in five American voters believe televised hearings would be “good for democracy.” In fact, half of voters said they would regularly watch oral arguments if televised, and only ten percent would never watch.
Televised access to arguments would encourage participation, lead to a healthier cultural discourse, and would likely strengthen the public’s appreciation of our justice system. And it’s unlikely that the current ranks of Justices and the exclusive Supreme Court Bar would be fazed by a camera or additional media attention. Judges with lifetime tenure have little to fear from the prospect of increased public attention and scrutiny.
While the Court is rightly concerned with change, American courts have undergone dramatic change in recent years in providing easier access to decisions and proceedings. Justice Kavanaugh noted the development of audio transparency during his tenure on the D.C. Circuit, beginning with the release of audio many weeks after argument to today livestreaming the audio of oral argument. The same development occurred at the Supreme Court, where today opinions and audio are available within 24 hours. Our country has also had significant experience with cameras in the courtroom in the past few decades, both at the state and federal levels. The successful experiences of cameras in the Canadian and British Supreme Courts lends more support.
Without video, the political farce the Court fears has, in some ways, already been realized. The most viewed “videos” of U.S. Supreme Court argument are currently YouTube oral argument videos with dogs starring as the Justices, courtesy of Last Week Tonight’s John Oliver.
Perhaps the best solution to growing fears of politicization in our courts is to lean in and allow Americans to take a look at the important work that is done there. It seems impossible that cameras won’t enter the courtroom in the future, whether that be imminent or further down the line. As Justice Ginsberg has noted, it probably won’t happen until all nine Justices agree, but the tide of cameras in the courtroom is not only in the public interest, it seems inevitable.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.