Thursday, January 12, 2006
Cameras in the Court
Yesterday, during Judge Alito's confirmation hearing, the issue of cameras in the Supreme Court came up again. I find myself strangely torn.
The typical arguments made in favor of televising the Supreme Court are familiar, and I find them convincing for the most part. I also support greater transparency in government and, more generally, the free flow of information. And here's an article by Professor Akhil Reed Amar from a few years ago making the case that the Court's stance on cameras is hypocritical in light of its First Amendment jurisprudence. But my ambivalence stems from one of the arguments often made by proponents of Supreme Court TV that I find unconvincing: Televising Supreme Court oral arguments will help to educate the general public about the Court and give us a populace better informed about the legal system and American government more broadly.
The problem with this idea is that oral arguments are just not central to what the Supreme Court does. The real action in the Supreme Court (and appellate courts generally) is in the briefs. It's not unusual for the Court to spend a large amount of time during an oral argument focusing on an issue that doesn't even appear in a footnote in the final opinion. Or to use up the entire hour and barely touch on the key questions that will ultimately decide the case. And there may be good reasons for this. The central issues may have already been spelled out in great detail in the briefs, and the Justices don't want to waste time going over the same ground. Or the litigators may feel that they already have a pretty good idea where most of the Justices are going to line up, so they focus on smaller points in the hope of winning over one or two swing Justices.
But for the average member of the public who is never going to take the time to read the briefs and understand the real issues at stake in the case, the oral argument looks like the whole show. In some sense, a person who watches the oral argument and then hears the judgment of the Court might be less well informed than someone who hears the judgment alone.
But then I think of my own experience. I've spent more than a few hours listening to oral arguments, and I feel that I've gotten quite a bit out of it. It has helped me to get to know the individual Justices, as well as learn about individual cases and the law more generally. I appreciated it when the court immediately released the recordings of Rumsfeld v. FAIR and Ayotte v. Planned Parenthood this year, and I'm impatiently awaiting the posting of the 2004 oral argument mp3's on Oyez. If they started televising the Court I would probably stick with the audio, but I would love to see same day availability of the recordings.
So what's my problem? Is this just elitism on my part? Access to this information is good for me, but the unwashed masses aren't capable of handling it? Probably. Maybe once the oral arguments start getting more attention, the media will do a better job of explaining what they're really about. I hope so, since this seems to be inevitable in the near future.
The typical arguments made in favor of televising the Supreme Court are familiar, and I find them convincing for the most part. I also support greater transparency in government and, more generally, the free flow of information. And here's an article by Professor Akhil Reed Amar from a few years ago making the case that the Court's stance on cameras is hypocritical in light of its First Amendment jurisprudence. But my ambivalence stems from one of the arguments often made by proponents of Supreme Court TV that I find unconvincing: Televising Supreme Court oral arguments will help to educate the general public about the Court and give us a populace better informed about the legal system and American government more broadly.
The problem with this idea is that oral arguments are just not central to what the Supreme Court does. The real action in the Supreme Court (and appellate courts generally) is in the briefs. It's not unusual for the Court to spend a large amount of time during an oral argument focusing on an issue that doesn't even appear in a footnote in the final opinion. Or to use up the entire hour and barely touch on the key questions that will ultimately decide the case. And there may be good reasons for this. The central issues may have already been spelled out in great detail in the briefs, and the Justices don't want to waste time going over the same ground. Or the litigators may feel that they already have a pretty good idea where most of the Justices are going to line up, so they focus on smaller points in the hope of winning over one or two swing Justices.
But for the average member of the public who is never going to take the time to read the briefs and understand the real issues at stake in the case, the oral argument looks like the whole show. In some sense, a person who watches the oral argument and then hears the judgment of the Court might be less well informed than someone who hears the judgment alone.
But then I think of my own experience. I've spent more than a few hours listening to oral arguments, and I feel that I've gotten quite a bit out of it. It has helped me to get to know the individual Justices, as well as learn about individual cases and the law more generally. I appreciated it when the court immediately released the recordings of Rumsfeld v. FAIR and Ayotte v. Planned Parenthood this year, and I'm impatiently awaiting the posting of the 2004 oral argument mp3's on Oyez. If they started televising the Court I would probably stick with the audio, but I would love to see same day availability of the recordings.
So what's my problem? Is this just elitism on my part? Access to this information is good for me, but the unwashed masses aren't capable of handling it? Probably. Maybe once the oral arguments start getting more attention, the media will do a better job of explaining what they're really about. I hope so, since this seems to be inevitable in the near future.
