Today, the U.S. Supreme Court hears arguments about the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. Yesterday, the court considered whether states can ban same-sex marriage.
You can read tweets about these historic hearings as the morning goes on, but the court will not let you watch them and access is limited. The craziest part of all, to me, is that America is not demanding a change.
Last year, the court decided the future of the nation’s health care system. In 2000, it effectively decided who would be president. The public can’t witness these decisions being made because, as Justices Stephen Breyer and Anthony Kennedy have suggested, people might not understand the complex work of the court, cameras could hurt the dynamics of the court, and someone might mug for the camera. Here’s a collection of justices explaining their thoughts on the issue.
In 2007, Justice Kennedy explained his reasoning to Congress:
“…But I don’t think it’s in the best interest of our institution…Our dynamic works. The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite. Please don’t introduce that insidious dynamic into what is now a collegial court. Our court works…We teach, by having no cameras, that we are different. We are judged by what we write. We are judged over a much longer term. We’re not judged by what we say. But, 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.”
It reminds me of the Wicked Witch of the West saying to Dorothy: “These things must be done delicately or you hurt the spell.” I think justices — presumably some of the most honorable citizens among us — can control their behavior on the bench and resist the “insidious dynamic” that a camera might produce.
How did we get here?
The ban on photos and video has deep roots. In 1946, the court adopted Federal Rule 53, which states: “[e]xcept as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” In 1972, the prohibition was expanded to TV.
In 1988, the court appointed the Ad Hoc Committee on Cameras in the Courtroom. Two years later, a special commission found that based on the two-year experiment, cameras should be allowed in federal civil courts.
In 1991, a few appellate courts launched a trial period with cameras allowed in. Then in 1994, the whole experiment died. In 2010, the federal Judicial Conference decided to try another experimental period with cameras in some courtrooms.
So, in 2011, 14 federal trial courts started another “pilot” project to see what happens when courts allow cameras in. How many of these pilot projects do we need? State courts have allowed cameras for decades. What is left to be learned?
We are living with a ban that was imposed even before most people had a television. The closest thing you get to being a live witness to the court’s proceedings is a steady stream of tweets. How’s that for a “splendid dynamic?”
What about the disruption?
Just how disruptive is a camera in a federal courtroom? Click here to see the video from one of those test cases — the United States v. Guam Waterworks Authority.
The case might not sound that interesting until you realize that it has to do with safe drinking water and what were alleged to be toxic discharges into the environment. I watched some of the USA v. Guam case and was impressed by the serious way the judge and lawyers handled themselves.
Justices Breyer and Kennedy have nothing to worry about in this court; nobody was acting like a fool mugging for the camera. This is at the heart of what courts do every day in America; they hear the people’s business. It’s not entertainment, like Judge Judy. It is a living civics lesson, and exactly what the public should be able to see.
Live coverage would give the people unfettered access to the words the justices say, and would make it harder for journalists to add their own spin. Live coverage would also help us visualize what’s going on much more than words can.
The Washington Post said that during the hearing Tuesday, several justices were “sharply questioning the premise” of California’s law. I would like to see and hear those “sharp” words.
The Post’s coverage included this passage:
“(Justice) Kagan asked whether, if procreation were such a vital interest, marriage licenses should not be issued to heterosexual couples over 55. (Washington lawyer Charles J.) Cooper replied that it was rare for both parties to a marriage to be infertile. Kagan retorted: “I assure you if both the man and the woman are over 55, there are not a lot of children coming out of that marriage.”
Wouldn’t you love to see that exchange on TV? A retort no less.
Justice Elena Kagan has said she likes the idea of having cameras in the court. In 2011, she told The Aspen Institute:
“I do think it would be a good idea…If everybody could see this, it would make people feel so good about this branch of government and how it’s operating…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…”
A little good press wouldn’t hurt
The court could do itself some favors by allowing people to see how serious the justices are. Just this week, a new Pew survey shows the Supreme Court’s favorability rating is near a historic low.
The court should not concern itself with popularity polls, but it should concern itself with public trust. Nothing builds trust like openness. Nothing builds openness more than access. It is time to reverse a 41-year ban on cameras in courtrooms.