Cameras in Court: Oyez or Oh No?

Yes, I know -- that's a truly disgraceful headline. Sue me!

While we're on the topic of courts (horrendous headlines beget horrible ledes, what can I say), let's talk Supreme Court. More pointedly, the question of whether or not it makes sense for the U.S. Supreme Court to allow cameras in to capture the court's proceedings. Passions flare up about the question of cameras in the courts every few years, often sparked by Senate nomination hearings for potential justices. Who's for and who's against giving the public an eye on what happens in the highest court in the land? Several prominent members of Congress -- notably some of the heavyweights on the Senate Judiciary Committee, including Patrick Leahy, Lindsey Graham, Arlen Specter, Russ Feingold -- have pushed for cameras not only in SCOTUS, but in U.S. appellate and district courts too. C-SPAN, unsurprisingly, wants a chance to bring its cameras inside courtrooms. Scores of newspapers, which would benefit from increased access to the courts, have editorialized in favor of the idea. But some of the nine Supreme Court justices have been resistant to the idea. And by "resistant," I mean things like David Souter saying, "The day you see a camera come into our courtroom it's going to roll over my dead body."

The notoriously publicity-avoiding Souter is, of course, on his way out (thankfully, under his own volition), which is why we're having confirmation hearings for Sotomayor. So where does the nominee come down on the question? Wisconsin Senator Herb Kohl was one among several senators who asked the nominee about where she stands on allowing cameras in the courts. As you can see in the video up top, Sotomayor danced around the question like she was on "Dancing with the Stars." I'm not on the court yet, she said, so rendering a verdict on the role of cameras in the courts would be presumptuous. Fair enough, said Kohl. But surely, given your lengthy experience as a judge, you must have an opinion on the matter? Sotomayor claimed deference to her potential colleagues on the court, saying that she would approach the matter by engaging in collegial collaborative discussion after she donned the robe. (Full transcript of the Kohl-Sotomayor exchange below.)

The thing is, Sotomayor's dodge might actually be an opening.

There seems to be a trend on the court where justices celebrate the virtues of opening up the court while their sitting before their Senate vetters, only to harden against the issue once they're the ones sitting in the justice's chair.

Witness Clarence Thomas at his 1991 confirmation hearing, "Its good for the American public to see what's going on in there."

Then Justice Thomas fifteen years later: "It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don't think for the better."

Anthony Kennedy in his 1987 confirmation: "Perhaps they would be accustomed to it after awhile. The press is a part of our environment. We cannot really excise it from the environment."

Justice Kennedy in 2007: "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.”

Justice Antonin Scalia after four years on the court, detailed his souring on the idea of broadcasting the court's proceedings: "Well, when I first came on the court, I was in favor of having cameras in the court. I am less and less so…I don't want it to become show biz…It is the tradition of common law judges not to be public figures, not to be prominent in the political process or in the process of public interest. I think that's a good tradition…So, for those various reasons, I'm not a big fan of having our sessions televised. Our sessions are open and anytime any of you is in Washington, I certainly invite you to attend, urge you to attend."

(Shorter Scalia: The Supreme Court is open. You just have to come to DC and wait in line.)

But Sotomayor's dancing around the question might actually spell a more considered opinion than nominee's in the past have held. As a judge on the lower courts, she participated in experiments with cameras. So for her the question is less academic than it is for some of the justices who have already put in decades on the Supreme Court. With Souter gone, collegial deference gives way, potentially, to the Roberts Court's reconsideration of the question rooted in some real-world experience.

There are, naturally, some very good questions to be asked over whether broadcasting what happens in the Supreme Court is the right path to take. On the plus side, many of us non-lawyer Americans have a tough time really understanding some of the core principles on which the republic is based, from the commerce clause to stare decisis to the right to privacy. Ignorance breeds malice, and we as a country might benefit from having a regular view onto what the Supreme Court is doing in our stead. On the potentially negative side, there's the question over whether allowing cameras in the Supreme Court would necessarily trickle down to the lower rungs of the judicial system, including not only appeals cases but trials themselves. Could witnesses in sensitive cases suddenly find themselves staring into the lens of a camera? It's not entirely clear to me why, though, what happens in the Supreme Court can't be limited to the Supreme Court, given its unique place in the judicial universe.

The transcript of the Kohl-Sotomayor exchange, courtesy of the LA Times:

KOHL: All right. Let's talk a little bit about cameras in the court. You sit on a court of appeals which does allow cameras into court. And, from all indications, your experience with it has not been negative. In fact, I understand it's been somewhat positive.

So how would you feel about allowing cameras in the Supreme Court, where the country would have a chance to view discussions and arguments about the most important issues that the Supreme Court decides with respect to our Constitution, our rights, and our future?

SOTOMAYOR: I have 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.

Perhaps it would be useful if I explain to you my approach to collegiality on a court. It is my practice, when I enter a new enterprise, whether it's on a court or in my private practice or when I was a prosecutor, to experience what those courts were doing or those -- those individuals doing that job were doing, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful or why certain practices shouldn't be done or new procedures tried, and then spend my time trying to convince them.

But I wouldn't try to come in with prejudgment so that they thought that I was unwilling to engage in a conversation with them or unwilling to listen to their views. I go in, and I try to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together.

And I can assure you that, if this august body gives me the privilege of becoming a justice of the Supreme Court, that I will follow that practice with respect to the tall issues of procedure on the court, including the question of cameras in the courtroom.

KOHL: I appreciate the fact that, if you can't convince them, it won't happen. But how do you feel? (LAUGHTER) How do you feel about admitting cameras in the Supreme Court, recognizing that, you know, you cannot decree it by fiat?

SOTOMAYOR: You know, I'm a pretty...

KOHL: Think it's a good idea?

SOTOMAYOR: I'm a pretty good litigator, or I was a really good litigator, and -- and I know that when I worked hard at trying to convince my colleagues of something after listening to them, they'll often try it for a while. I mean, we'll have to talk together. We'll have to figure out that issue together.

KOHL: OK.

SOTOMAYOR: I will -- I would be, again, if I was fortunate enough to be confirmed, the new voice in the discussion. A new voices often see things and talk about them and consider taking new approaches.