In the classic Pulp Fiction, Jules (played by Samuel L. Jackson) asks his fellow hit man, Vincent (John Travolta): “You know the shows on TV?”
“I don’t watch TV,” Vincent replies.
“Yeah,” Jules says, “but, you are aware that there’s an invention called television, and on this invention they show shows, right?”
It’s likely that the nine distinguished justices of the U.S. Supreme Court have heard of this invention called television, but they don’t seem to like it any better than Vincent. The court continues to cling to its misguided policy of refusing to allow its proceedings to be televised. It’s a supremely bad idea.
And it doesn’t look like that will change anytime soon. Indeed, things seem to be moving backward. During their confirmation hearings, the two newest justices, Sonia Sotomayor and Elena Kagan, indicated that they were open to letting the cameras in. But apparently now that they’ve joined the club, they have rethought their positions, according to an article in The New York Times last week.
Sotomayor seems to think the masses just aren’t sharp enough to understand what they’d be seeing. She said during an interview with Charlie Rose on PBS: “I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing. They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”
The Times article also reported that Kagan had become far less enthusiastic about letting the sunshine in, expressing fears that “people might play to the camera.” That was a far cry from her comment during her confirmation hearings, “I have said that I think it would be a terrific thing to have cameras in the courtroom.”
This backsliding is really unfortunate, because the Supreme Court’s anti-camera policy is just so wrong for a democracy. The high court plays such a huge role in the lives of Americans, even on one occasion deciding who would be the next president. It was the ultimate arbiter on the fate of President Obama’s far-reaching and controversial health care legislation. On Wednesday the court heard arguments over the Voting Rights Act, and soon it will be taking up same-sex marriage.
It seems unconscionable that Americans can’t watch as lawyers present their cases on matters of such great importance and the justices test their arguments.
The objections to cameras seem pretty frail when compared with the public’s right to know. Take Kagan’s concern that TV might encourage lawyers to showboat. Doing so runs the risk of alienating the justices. Would lawyers really rather brandish their acting chops than win their cases?
Then there’s the possibility that news outlets would use snippets and sound bites in a misleading way. Well, that’s a risk we run with having a free press. The same thing could easily happen in a news account for a newspaper or website.
Perhaps the justices should take a cue from our neighbor to the north. The Supreme Court of Canada has allowed arguments to be broadcast since the mid-1990s. Owen Rees, the court’s executive legal officer, says that has been a good thing. “The filming of the Supreme Court of Canada’s hearings has increased the public’s access to the court and its understanding of the court’s work,” he told the Times. The proceedings are also streamed live on the Internet.
Brian Lamb, founder and executive chairman of C-SPAN, has waged a long, sometimes lonely battle to get the court to allow his network to air its proceedings. C-SPAN sent its first letter seeking permission to turn on the cameras to then-Chief Justice William Rehnquist in 1988.
In Lamb’s view, opening up the court to cameras is a no-brainer. “It’s just basic,” Lamb says. “It’s a public institution paid for by the taxpayers. It’s an incredibly important part of our tripartite government.. …The public would greatly benefit by seeing how this works.”
Lamb finds the court’s recalcitrance “very frustrating.” And somewhat mystifying. “They all have very deep feelings about the law,” he says. “You would think they’d want people to see them.”
The C-SPAN impresario sees the retreat by Sotomayor and Kagan as part of an all-too-familiar pattern. Prospective justices seem open to the idea of cameras during the confirmation process. But once they join up, they become caught up in the culture of the place, “the priesthood,” as Lamb calls it.
Lamb points out there has been one major step forward. In the past the court did not release the audio of oral arguments from one term until the beginning of the next. Now, thanks to Chief Justice John Roberts, it does so at the end of each week. (The court will occasionally release the audio the same day, as it did in the health care case.)
So if audio is OK, even if not in real time, what’s so scary about video? Lamb, stressing that this is pure speculation, suspects the court doesn’t like the way TV sometimes portrays other institutions and wants to avoid the same fate. “They’re afraid outfits like Jon Stewart and Colbert and Saturday Night Live will make fun of them, and they don’t want to help them.”
Lamb is not the only camera champion to be foiled. The late Sen. Arlen Specter of Pennsylvania pushed hard, but fruitlessly, for legislation to require the court to allow arguments to be televised. Specter even brought up the issue in his farewell speech on the Senate floor in December 2010: “Congress could at least require televising the court proceedings to provide some transparency to inform the public about how the court is the final word on the cutting issues of the day in our society.”
Lamb doesn’t seem optimistic his campaign will have any better luck. “All of (the justices) have dug in,” he says.
Rieder is editor and senior vice president of American Journalism Review.