Editor’s note: This term of the U.S. Supreme Court is shaping up as a blockbuster, with issues of health care reform, affirmative action, high-tech surveillance and church/state separation already on the docket or soon to be considered. With attention focusing on the Court, the drumbeat in favor of allowing cameras in the Court is likely to increase in intensity — and the Court is just as likely to say no. NLJ Supreme Court correspondent Tony Mauro wrote about the Court’s objections to camera access in a recent article in the Reynolds Courts & Media Law Journal. A condensed version of the article appears below.

The Supreme Court has never allowed the broadcast news media to bring the tools of their trade — cameras and microphones — into its courtroom for coverage of its proceedings. Unlike almost every other public institution in the United States, it has been able to maintain such a ban to this day, ignoring the successive winds of change brought by radio, television and the Internet.

That defiant stance is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court’s view of itself as a unique institution that can and should resist the demands of the information age.

“We operate on a different time line, a different chronology. We speak a different grammar,” Justice Anthony Kennedy once said in response to questions from members of Congress about allowing cameras in. As recently as June, when Chief Justice John Roberts Jr. was asked about cameras in the Supreme Court, he acknowledged that many states have allowed cameras in, but said, “The Supreme Court is different, not only domestically but in terms of its impact worldwide.”

Neither Kennedy nor Roberts explained why that “differentness” justifies keeping cameras out of the Supreme Court, however. In this article I examine whether the Court’s exceptionalist self-image or the other reasons it offers for its resistance to cameras can or should stand in the way of the demands of the modern era for access and transparency.

Why are the cameras kept away? In part it is because the Court can keep them away, as it always has. One by one, major institutions in the executive and legislative branches of the federal government, and all branches of state governments, have let the cameras in — some eagerly, some reluctantly. But the Supreme Court has resisted the trend altogether, and the other branches, as well as the public, have not insisted otherwise.

THE COURT REMAINS HIDDEN

As a result, the Court is allowed to deprive the public of an educational feast. Justices debate endlessly the importance of oral argument to their deliberations, but its value and content as a public event are undeniably important. And yet, it is not visible to the public, beyond the 250 or so members of the public, the bar and the press who are able to view it in person. As the momentum of the information age has brought almost every government institution into greater public view — even the Central Intelligence Agency has a YouTube channel — the Supreme Court remains hidden, at least in terms of visual coverage of its proceedings.

Over the decades, the Court has flirted with the idea of cameras. In 1988, it allowed an unpublicized demonstration of how cameras would work inside the Court chamber. Led by then-media lawyer Timothy Dyk of what was then Wilmer Cutler & Pickering — now a judge on the U.S. Court of Appeals for the Federal Circuit — a coalition of media organizations wanted the justices to see how far video technology had advanced, and how unobtrusive cameras could be. Cameras were brought in at 7 a.m., three justices sat in their regular seats and posed questions to Dyk to replicate an oral argument. Then they watched the videotape. Nothing came of the demonstration.

Under pressure from Congress, the Judicial Conference undertook a more formal experiment in the lower courts. Camera coverage of civil proceedings was permitted on an experimental basis in two appeals courts and six district courts. The experiment, which ran from 1991 to 1994, went well. “Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program,” according to a Federal Judicial Center evaluation.

In spite of its success, however, the experiment did not come close to winning over the federal judiciary. Outside influences ranging from the Clarence Thomas confirmation hearing in 1991 to the O.J. Simpson trial in 1995 set back the cause for years.

During a judicial conference in 1993, then-justice Byron White candidly offered one of the most fundamental reasons for the Court’s disdain for cameras. “I am very pleased to be able to walk around, and very, very seldom am I recognized” because of the absence of television coverage of his court, he said. “It’s very selfish, I know.” Interestingly, White predicted that someday the Court would be made up of justices supportive of cameras who would ask, “What was wrong with those old guys?”

INCREMENTAL STEPS

That has not yet happened, but the Court has made incremental steps. Better late than never, in 2000 the Supreme Court launched its own Web site, a generally user-friendly site that enabled readers to access the Court’s docket and opinions quickly for the first time.

Also in 2000, the Court took perhaps a more important step by allowing audio recordings of certain high-profile oral arguments to be released to the media shortly after they occurred. The Court did so in response to a request from C-SPAN in the historic cases of Bush v. Palm Beach County Canvassing Board and Bush v. Gore, after turning down a request from the major broadcast networks for live television or radio access. For several terms thereafter, the Court approved same-day release of audiotapes of a handful of major cases each term. That tapered off as the Court became uncomfortable about deciding which cases warranted special treatment. Now, the tapes of all arguments — newsy or not — are released on the Friday of the week they are argued, guaranteeing they will arrive too late for use in same-day news coverage.

These changes have been viewed as welcomed improvements in public access to the Court, but they fall short of the biggest and most public-minded step the justices could take — namely, allowing television and radio broadcast of Court proceedings on a par with the way other public institutions are covered. In fact, it sometimes seems that the small concessions are aimed at warding off pressure to take that larger step. Justice Samuel Alito Jr. implied as much when he was asked about cameras in the Court during a 2007 appearance at Pepperdine University. He rattled off the innovations in access to transcripts and audio, and asked why “that extra bit of information,” the video, was so important.

The Roberts Court, now six years old, is in some ways the Court that Byron White predicted it would be back in 1993. Refreshed by four recent vacancies, the Court now has younger members who don’t remember a time without television. Most of them are battle-hardened when it comes to television, because of their experience with confirmation hearings that have become highly polarized and almost always contentious.

THE EXCEPTIONALISM ARGUMENT

Yet the justices still resist. The root of almost every objection the justices have expressed about camera access is the justices’ deeply held feeling that their Court is exceptional — unlike any other public institution. The Supreme Court is not like any other court, they say. It is also unlike the other two branches of government, both of which are led by officials who stand for election — as do many, if not most, state judges. As life-tenured justices, the theory goes, the members of the Supreme Court stand above and apart from the political fray. They are the most powerful, largely invisible, government officials in the nation, if not the world.

“We teach, by having no cameras, that we are different,” Kennedy once said.

From that uniqueness, the justices conclude that the Supreme Court should remain immune from the glare of the broadcast media. But does that conclusion really follow from the Court’s exceptionalist view of itself? It could be argued, in fact, that justices’ unique independence makes the broadcast of their proceedings more justifiable, not less so, than for other institutions.

Although cameras might, and probably do, distort the behavior of elected officials bent on pleasing their constituents, they should have little negative effect on contemplative, life-tenured judges who insist they are apolitical. If they are truly independent and different, one would think that Supreme Court justices should be uniquely inattentive to the presence of cameras and should be able to carry on undisturbed.

And if the Supreme Court has unique worldwide impact, as Roberts said, then why should its work not be televised? Using the Court’s global influence as an argument for invisibility seems contradictory, unless Roberts is suggesting that the Court’s stature would somehow shrink by becoming more visible. I would argue the opposite. When the Supreme Court is under intense scrutiny — whether during the 1993 release of the Thurgood Marshall papers, or in the context of controversial decisions ranging from Snyder v. Phelps to Bush v. Gore — the Court usually emerges favorably as an institution that strives to be fair and get it right, even if the result is unpopular.

In September 2010, the Judicial Conference, which sets policy for the lower federal courts, voted to undertake another three-year experiment with camera access that echoes the pilot project of nearly 20 years earlier. Spurred again by pressure from Congress, the conference decided the time had come to take another look.

What comes next in the long and spectacularly unsuccessful campaign for cameras in the Supreme Court? We wait, yet again, for the results of another three-year experiment with broadcast of a limited category of civil proceedings in lower federal courts. In his June remarks, Roberts said, “I’ll be very interested to see what the results of the pilot program look like. I’m sure we will take that into account.” He reminded his audience of a recurring architectural motif at the Supreme Court: depictions of tortoises at the base of outdoor lamps and elsewhere. “That’s to indicate we move slowly but surely on a stable basis.”

Those who argue for cameras in the Supreme Court are not, however, asking for sudden, destabilizing change. The justices have had more than 60 years to contemplate the impact of cameras on their cherished institution — longer than that, if one includes the era of newsreels. During that period, the Court has become a powerful force in American society — more muscular than ever before, in fact, on issues of life and death, privacy and new technology, commerce and communications. It is unique and exceptional, but not in ways that should make it invisible. The Supreme Court is far from the fragile flower that its protectors make it out to be by shielding it from a news medium that is no longer new or especially threatening. Courts throughout the world have allowed broadcast coverage for years or decades and survived.

SUPPORT FROM NEWEST JUSTICES

The Court’s newest justices seem to know this, and may be able to work on reducing their colleagues’ timidity. In 2009, after seeing the Court’s oral arguments from the perspective of a U.S. solicitor general, Justice Elena Kagan said, “I think if you put cameras in the courtroom, people would say, ‘Wow.’ They would see their government working at a really high level.” Justice Sonia Sotomayor, who saw courtroom cameras as a judge on the U.S. Court of Appeals for the 2d Circuit, also appears to be a fan.

If they work on their colleagues inside the Court, while at the same time the three-year experiment with civil proceedings at the district court level shows positive results, then maybe, just maybe, in three years or so, the Supreme Court will realize that the time has arrived to allow cameras in. Even a tortoise crosses the finish line eventually.

Tony Mauro can be contacted at tmauro@alm.com.