Cameras and the Supreme Court

Senator Arlen Specter and Congressman Ted Poe have introduced legislation in the Senate and House, respectively, that would require the Court to televise its public proceedings.  The Senate Judiciary Committee will discuss the legislation in a hearing today (The Committee will also consider S. Res. 339 , which expresses the Senate’s view that the Court should permit live television coverage of open sessions of the Court). Similar legislation has been introduced in each Congress since the 105th (1997-1999); although neither the full Senate nor the House has held a vote on the proposal, the legislation has been reported out of the Senate Judiciary Committee twice.  C-Span has also sought to have Court proceedings televised:  it has been petitioning the Court to allow broadcasts since 1988, and the proposal has been extensively debated and analyzed.

The reactions of the Justices to the possibility of cameras in the courtroom have generally ranged from skepticism to outright opposition:  former Justice David Souter once famously testified before Congress that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”  Relevant precedent could allow the Court to uphold or strike down the proposal.  However, given the unsuccessful track record of substantively similar legislation, it seems unlikely that the Senate and House will pass this iteration of the proposal.

The history of cameras and courts:

State legislatures have overwhelmingly supported the introduction of cameras into state court proceedings.  In 1976, Alabama and Washington first allowed cameras to be used in trial and appellate courts, and all fifty states now permit some type of audio or videotaping in their courts.

By contrast, the Judicial Conference of the United States, which is principally responsible for making policies for the administration of federal courts, has generally moved in the opposite direction from the states.  In 1946, the Conference adopted rules that prohibited electronic media coverage of criminal proceedings; twenty-six years later, it ratified a policy that prohibited “broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto.” And after a 1994 Federal Judicial Center study concluded that cameras may have an adverse impact on witnesses and jurors, the Conference ratified policies that discouraged cameras in the courtroom – policies quoted by Chief Justice John Roberts in the Court’s order barring television cameras from the courtroom in the California Prop 8 trial: “the intimidating effect of cameras on some witnesses and jurors [is] cause for concern.”

Precedents:

Were this legislation to pass, the Supreme Court could itself hear a challenge to it, presumably from someone opposed to having his trial broadcast.  Four of the Court’s cases are relevant to such a discussion.

Opponents of cameras in the courtroom would likely rely on two cases.  First, in Estes v. Texas (1965), the Court held that the petitioner’s due process rights were violated by the publicity associated with his trial.  In an oft-quoted dissent, Justice Harlan emphasized that the Court should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination with the traditional workings of the Due Process Clause.

And in Nebraska Press Association v. Stuart (1976), the Court held that pretrial publicity can create “tensions . . . between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment.”

By contrast, two of the Court’s more recent cases could be construed to support cameras at the Court.  First, in Richmond Newspapers, Inc. v. Virginia (1980), the Court held “that the right to attend criminal trials is implicit in the guarantees of the First Amendment,” suggesting that there is a “nexus between openness, fairness, and the perception of fairness.”  And in 1984, in Press-Enterprise v. Superior Court, the Court explained that “the value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”

Because the majority concluded that the lower court acted in haste, and neglected federal law, and because the Court is not subject to Federal Judicial Conference rules, the Court’s decision blocking broadcasts in Perry v. Schwarzenegger is incidental to this discussion.  The majority did not express “any view on whether such trials should be broadcast,”  noting that their determination was based on whether the federal court followed “the appropriate procedures set forth in federal law before changing their rules.”  Observers have also suggested that the decision was more relevant to gay marriage than cameras.

Views of Justices and Senators:

Two former chairs of the Senate Judiciary Committee disagree on whether action by the Senate to require cameras at the Supreme Court is appropriate.  Senator Arlen Specter (D-Pa.), who has argued two cases before the Court, maintains that the issue falls within the purview of the Senate, though he has conceded that “if the Supreme Court decides as a matter of separation of powers that it is not a Congressional prerogative, we will not petition for a hearing.  That will be the judicial decision which we respect since Marbury v. Madison.”  By contrast, Senator Orrin Hatch (R-Utah) has suggested that cameras could disrupt the Court’s work: “importantly, I believe that the federal judiciary has special expertise in this area and is entitled to a measure of deference.”

Justice Breyer, who volunteered the First Circuit for an experimental program when he was on the Judicial Conference, recently told a House Appropriations Subcommittee that cameras would “inevitably” come to the Court.  However, before moving forward, the Court would need to have a certain comfort level; “how to get to that comfort level is going to be a long, complicated matter,” he said, concluding that  “we’re not there yet.”  That said, although some Justices have offered measured openness to the idea of cameras at the Supreme Court, the Justices have generally expressed skepticism (click here for quotes from each of the Justices).

Three of the current Justices had at least some experience with cameras in their capacity as judges in the federal courts of appeals; Justice Sotomayor, who participated in a camera study while serving on the Second Circuit, may be most supportive: during her confirmation hearing, she testified that she had “had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”  Justice Alito also has experience with cameras, as he noted in his confirmation hearings: “all the Courts of Appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it.”

Justice Ginsburg has not expressed strong opinions regarding cameras, other than to say that the issue should only be “decided after really pretty serious research and study.” And the Chief Justice has indicated that if the Court were to broadcast cases, it should be “very careful.” Justice Stevens has not expressed strong opinions.

Justices Kennedy, Thomas, and Scalia have all opposed cameras in the Court.  In 2007, Justice Kennedy explained his opposition to the House Appropriations subcommittee: “all in all, I think it would destroy a dynamic that is now really quite a splendid one and I don’t think we should take that chance.”  Justice Thomas, testifying before the same subcommittee a year earlier, posited that introducing cameras at the Court “will change our proceedings. And I don’t think for the better.”  And Justice Scalia opposed cameras in the Court in a 2005 CNBC interview: “not a chance, because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems.”