If you were following our live blog in the final weeks of the Court’s Term, as the Court prepared to issue historic rulings in cases involving affirmative action, same-sex marriage, and voting rights, at some point you probably saw us say something like this:
To answer a common question, there is no live video or audio feed of the proceedings today. There is no live video ever, and the audio recording of the announcement won’t be available until much later.
But members of the Senate are making another effort to try to change that. On June 20, Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) introduced legislation that would put video cameras into the Courtroom. Their bill, the Cameras in the Courtroom Act of 2013, would require all Court sessions that are open to the public to be televised unless a majority of the Justices agree that doing so would violate the constitutional rights of one or more parties to a particular case.
The bill would represent a dramatic change from current practice. In 1946, Federal Rule of Criminal Procedure 53 prohibited photography and radio broadcasting; the Judicial Conference of the United States adopted those restrictions in 1972 and expanded them to include television. Then, in 1988, then-Chief Justice William Rehnquist appointed a committee to study the effects of cameras in the courtroom; a pilot broadcast program in two appellate and six district courts began three years later. Although a judicial committee recommended that broadcasting be continued and expanded when the pilot program ended in 1994, the Conference decided not to do so. Instead, in 1996 it voted to amend its ban on broadcasting to allow each court of appeals to make its own decision on the issue.
Since then, two courts of appeals – the Second and the Ninth Circuits – have allowed cameras in the courtroom. But the Conference has put the fate of cameras in federal district courts on hold, commissioning another pilot program two years ago that is currently ongoing.
Since 1988, C-SPAN has repeatedly sought approval to televise or provide live audio of proceedings at the Court, but those requests have been denied. The Court now releases transcripts of oral arguments within a few hours after they take place, with its own audio recordings of arguments following (normally) at the end of the week. The U.S. Court of Appeals for the D.C. Circuit has gone further, announcing last month that it would release same-day audio (something the Supreme Court does infrequently in high-profile cases) for all of its oral arguments.
This bill is not the first try – nor is it likely to be the last – to bring cameras to the Courtroom, as many members of Congress believe that doing so would increase the transparency of and accessibility to the Court. Since 1999, leaders in both houses of Congress have repeatedly sought to pass various forms of this same legislation. But the proposals have also sparked a spirited debate. Current and retired Justices have opposed televising proceedings. They cite concerns that the cameras would affect the dynamic of oral arguments – for example, by tempting arguing counsel to emphasize sound bites over substance. Most famously, now-retired Justice David Souter once vowed that cameras would appear in the Court only after they “roll[ed] over my dead body.” (This graphic from C-SPAN lists some of the public statements made by current Justices on this issue; this blog has also previously has previously covered this debate, both here and here.)
On the other side of the debate, members of Congress want the Court to be seen and held accountable by the public, whose access to public sessions is limited. And the debate also raises critical constitutional concerns – does Congress have the power to control the Court’s day-to-day workings, and – even if it does – is it prudent for Congress to deploy that power? Look for the debate to continue in the weeks and months ahead.
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