It has happened again. Yet another justice who spoke favorably as a nominee about allowing cameras in the Supreme Court has gone native and now thinks it’s a bad idea.
Justice Sonia Sotomayor, in several stops on her often televised book tour, has opined that televising oral arguments "could be more misleading than helpful" to viewers who have not delved into the issues before the court. She told Charlie Rose on PBS February 6 that "very few of them understand what our process is." That potential for mass misunderstanding, in Sotomayor’s view, justifies killing the lights.
At New York City’s 92nd Street Y the day before, according to New York Magazine, she said, "Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached. Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil’s advocate with lawyers."
That was a far cry from what Sotomayor said to the Senate Judiciary Committee in 2009. She had had "positive experiences" with televising appeals court arguments on the U.S. Court of Appeals for the 2nd Circuit, and promised then-Sen. Arlen Specter that she would "certainly relay those positive experiences" to her new colleagues. As a "really good litigator," she added, she felt confident she could persuade them to give cameras a try. The persuading apparently went in the other direction.
Sotomayor’s conversion was preceded by a similar switch by Justice Elena Kagan who, as a nominee, was an enthusiastic advocate for cameras in the court. "I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people," she told the Senate in 2010. Last September, two years into her tenure, she told a University of Michigan audience, "I have a few worries, including that people might play to the camera." She also expressed concern about how the footage would be used.
Other justices as well, from Samuel Alito Jr. to Ruth Bader Ginsburg, went largely negative once they joined the court, after they had expressed at least open-mindedness on the subject of camera access beforehand.
For years, the strategy among advocates of cameras in the court—if it can be called a strategy—was to hope that as younger, more media-comfortable justices joined the court, the institution’s obstinate opposition to cameras would melt away. In fact, the only thing that has melted away is the young justices’ resolve to advocate for cameras.
Why does this keep happening? Why do new justices who are far from shy in most other venues seem to wither in the face of institutional opposition by their new colleagues?
Possible explanations abound. The memory of the O.J. Simpson trial still burns brightly for some. The rite of passage that all justices share—the intrusive, nasty confirmation process itself—leaves new justices bruised and thinking twice about the virtues of media coverage. And during that process, their handlers might urge them to say positive things about cameras in the court to mollify the Senate and the media, sure in the knowledge that once they join the court, there’s nothing anyone can do about it if they "change their minds."
More recently, the intense glare of media attention surrounding the Affordable Care Act cases might have been too much for some justices—especially when audio from the oral arguments was used in political ads during the presidential campaign. Justices also fear losing their cherished anonymity when they tramp around town—a worry that they set aside once they have a book to sell. Or is it just something in the air or the drinking water of the court?
Maybe not the air or the water, but it could be the powerful aura, the sway, of tradition that they encounter inside the Marble Palace. It’s a phenomenon that political scientist Barbara Perry says is recognized in other institutions as "going native," and it may be as strong or stronger in the tradition-bound, insular and private Supreme Court.
"They may go in with very independent views," said Perry, a former Supreme Court fellow who authored a book on the court’s culture titled The Priestly Tribe. "But it’s very different once you are inside. They take on the institution’s norms. They want to fit in. They wonder if they really want to upset the apple cart."
That conversion probably does not come because of any active persuasion by the justices, Perry believes. "They wouldn’t need to do that, and if they did, it might even backfire," said Perry, now a senior fellow at the University of Virginia’s Miller Center.
Without any lecturing, Perry said, new justices quickly see how unique the Supreme Court is. "They realize there is something very different about the place and they don’t want to change it."
That realization has been articulated by Justice Anthony Kennedy as a major reason for not allowing cameras, says Perry. "We speak a different grammar," Kennedy once said. "He believes the process is so different, it is worth preserving," Perry said. "It’s the mystery of the robes."
But are the justices so mesmerized by the court’s internal norms that they forget it is a public institution? "I don’t think they are forgetting it," Perry said. "They just put it aside."
For her part, Perry opposes camera access for the very reasons some justices cite: because it could diminish that sense of uniqueness and damage the court’s legitimacy.
Nonetheless, Perry was critical of Sotomayor’s stated justification for keeping cameras out, namely the concern that the viewing public won’t understand what is going on. "Even if that’s what she thinks, it doesn’t sound very good. It sounds pretty elitist, and she is supposed to be a woman of the people."
C-SPAN vice president and general counsel Bruce Collins, a longtime advocate for cameras in the Supreme Court, also objected to Sotomayor’s reasoning. "She cites the court’s written opinions as its final products, and says that televising the oral arguments leading up to them would distract and mislead the public," Collins said. "But how is that different from legislation? No one says that because published statutes are Congress’s final product, the public therefore shouldn’t see legislative debates. We agree that the Supreme Court is different, but it isn’t so different that its public acts should be kept from the public it serves."
Tony Mauro can be contacted at email@example.com.