Inside the U.S. Supreme Court last week, the justices were doing what they do best: dissecting a difficult legal issue — this time same-sex marriage — in the intense back-and-forth of oral argument.
Over two illuminating mornings, the justices and top-notch advocates worked through most of the pros and cons of giving same-sex marriage constitutional protection — or instead letting the political process continue the debate.
Outside the court, however, the scene was less noble. People seeking seats for the oral arguments were forced to wait in line, with some arriving five days earlier. Tents were pitched, and money changed hands, with some paying as much as $6,000 to a line-waiting service for the chance of securing a seat inside. Inevitably things got messy, and the line seemed more befitting of a music hall or an Apple store on the eve of the release of a new iPhone.
In one sense, the avid interest of those in line was a healthy sign that people really care about the issue and about how the Supreme Court — their Supreme Court — would handle it.
In another sense, it was a disgrace. The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the court’s arrogant and stubborn refusal to allow cameras to record and broadcast its proceedings. Some of those waiting for days for seats might still do so if cameras were allowed, but it is a safe bet that most would have preferred to watch the oral arguments in the comfort of home on C-SPAN rather than wait in line over several cold and snowy days in March.
While the public shivers, the justices — newcomers and veterans alike — refuse to give in to the reasonable demands of the information age. They are fearful of the changes that cameras might trigger in the dynamics between justices and advocates and with each other — as if the court were a fragile flower, instead of the sturdy institution it is, an institution that usually holds up well under public scrutiny.
Having watched the arguments in the same-sex marriage cases, it is hard for me to imagine how they would have been different if small, unobtrusive cameras had been there to record what was going on. With or without cameras, Justice Antonin Scalia was his spirited self, demanding that lawyer Theodore Olson tell him "when did it become unconstitutional to exclude homosexuals from marriage?" Olson’s sharp reply would not have been different with cameras on hand. "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?" Olson said.
Judges and lawyers with experience before cameras in other courtrooms universally say that, especially at the appellate level, the questioning, listening and responding demand all their faculties. They soon forget cameras are there.
Last week, we got a taste of how useful and informative camera access would have been. The court released the audio of the arguments on a same-day basis, in time for broadcast journalists to incorporate the sounds from inside the court into their spot reports. Clips of substantive as well as funny exchanges were used, but both types helped make the issues understandable and vivid. They would have been much more so if video were added to the audio.
In a forthcoming law review article, University of Georgia School of Law professor Sonja West, a former clerk to Justice John Paul Stevens, applauds the court for the steps it has already taken toward greater public access to its proceedings. It releases the transcripts of argument, as well as the audio — albeit usually at the end of the week, not on the same day.
That high level of access, however, makes West wonder why the justices don’t just take the next step by allowing video coverage. "Why the fear of video cameras?" she asks. "After allowing so much access, why not add this additional avenue of communication with the public? Why close this single door when the walls around them are made of glass?"
The time has come, West argues, for the court to finally open that door to the premier medium of the last century, even as it is supplemented by other media in the new century.
"While there is no doubt that caution can be a virtue, there is a point at which caution becomes paralysis," West wrote in the Brigham Young University Law Review. "The Court has come far in opening its work to the eye of the public, but that very movement has helped to show that there is no real danger in televising the Court’s oral arguments." Last week at the court only made the logic of West’s argument more obvious.
Tony Mauro can be contacted at email@example.com.