U.S. Supreme Court. Credit: Mike Scarcella / NLJ

For decades, U.S. Supreme Court nominees have been asked a perennial question: whether they think Supreme Court proceedings should be broadcast on television.

Almost all have said yes, but invariably they change their minds soon after they join the court, fearful of upsetting the court’s traditions and dynamics.

Nominee Brett Kavanaugh on Wednesday sidestepped the question in part because of that switcheroo.

“I know nominees who’ve sat in this chair in the past have expressed the desire for cameras in the courtroom, only to get to the Supreme Court and really change their positions fairly rapidly,” Kavanaugh stated. “So that gives me some humility about making confident assertions about that, and of course, joining a team of nine means thinking about that … and hearing the perspectives of why did they change their position.”

Kavanaugh went on to tell U.S. Sen. John Kennedy, R-Louisiana, who asked the question Wednesday, that he had some concerns about televising oral arguments, even though his own court, the D.C. Circuit, has allowed “same-time” broadcast of the audio of its oral arguments. The court posts same-day audio, and allows livestreaming on request.

“Oral arguments are a time for the judges to ask testing questions of both sides, and there’s a perception sometimes, and you see it in the media, that the judge is leaning this way at oral argument,” Kavanaugh said. “I really can’t stand that kind of commentary about oral argument, because I, at least, have always approached oral argument as the time to ask tough questions of both sides. I do sometimes wonder whether people would get the wrong impression of oral argument.”

Kennedy pushed back at Kavanaugh’s statement, telling him that “people aren’t fools … You have to trust the people sometimes, judge.”

Senate Judiciary Committee chair Chuck Grassley, R-Iowa, a longtime advocate for cameras in the Supreme Court, asked Kavanaugh the camera question on Thursday. Kavanaugh pledged to have “an open mind” on the subject and again said he would listen to his colleagues’ views on the subject.

In his testimony, Kavanaugh did allow that the broadcast of the opinion announcements made by justices as decisions are handed down might be more appropriate for broadcast than oral argument, though he was tentative on that point, too.

“Now, I’ve felt too, though, the announcement of the Supreme Court decisions when they issue the opinions, that’s a different point in time” from oral argument, Kavanaugh said Wednesday. “That is the decision of the court.”

But the idea of broadcasting opinion announcements may be a tough sell for his likely future colleagues.

Oral argument audio is released by the court by the end of the week when the arguments occur, but opinion announcements are not made public until the next term begins.

The unstated reason for that delay is that justices don’t want opinion announcements to stand as an official account of the decision for the public. When a justice announces the summary of his or her majority opinion, the other justices who join the majority have not signed off on the text. Some justices have complained that the announcements sometimes stray from the text of the decisions. The announcements are the closest thing to “spin” that Supreme Court justices do.

In his autobiography published in 1980, the late Justice William O. Douglas wrote about the vagaries of opinion announcements. “Once [Felix] Frankfurter, speaking for the court, ad-libbed at length, giving reasons for the opinion that had no resemblance to the opinion. As we walked out, [Harlan Fiske] Stone said, ‘By God, Felix, if you had put all that stuff in the opinion, never in my life would I have agreed to it.’”

 

 

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