The debate over access to the U.S. Supreme Court has expanded beyond the decades-old question of whether video coverage of its proceedings should be allowed.
In part because of the demands of the digital age for greater transparency in all institutions, the discussion has grown to include audio and online streaming of arguments and opinion announcements, codes of conduct for justices, and disclosure of recusal and health information, among other things. Measures now before Congress would require camera access to the court and set explicit ethics standards for justices.
To update the debate, the Reporters Committee for Freedom of the Press held a forum on October 25 at the National Press Club. Panelists offered fresh perspectives on several issues.
Former appeals court judge Kenneth Starr, now president of Baylor University, urged the justices to “grow an extra layer of skin” and finally allow cameras in. Justices also should divest themselves of investments that cause recusals, Starr said.
Ohio Chief Justice Maureen O’Connor, whose court allows broadcast of arguments and additional online access, said the high court’s resistance to cameras was “elitist” and that the justices were “missing out on a huge opportunity to foster greater public understanding of our judicial branch.”
Hogan Lovells partner Neal Katyal, a frequent advocate before the court, predicted that cameras were “inevitable” someday, but said the justices’ concerns about their effect on arguments are “something we have to take seriously.”
George Washington University Law School associate dean Alan Morrison urged the court to at least allow audio access. He said the justices should adopt a “buddy system” to check with colleagues about whether they should recuse in a given case.
Longtime NBC Supreme Court correspondent Pete Williams said the court is not likely to allow video or audio release of its opinion announcements, adding that justices are now more afraid that “snippets” of arguments will be mocked by Jon Stewart on “The Daily Show” than anything else.
Following are key excerpts from the discussion. C-SPAN covered the event, and the video is available in its archive. (Note: Tony Mauro moderated the event.)
Starr on cameras: “My epiphany [came when] I was privileged to argue unsuccessfully the second flag-burning case [United States v. Eichman.] … I did my best, but I was one vote short. At the conclusion of that argument, I said hello to one of the columnists who’s kind of a curmudgeonly figure, James J. Kilpatrick.
“The opinion piece that he wrote in the Richmond Times-Dispatch … was that every American should have seen that argument. It’s not that I was so good. I clearly wasn’t. My worthy opponent William Kunstler was brilliant. He was an absolutely great, great appellate lawyer. But it was not the advocates. It was the entire process and especially the justices’ engagement through their questions, sometimes reflections. And it was a very poignant argument. John Paul Stevens, who many would categorize during his great service as an unabashed liberal, voted in favor of the government in that case, that the flag was unique. That’s when I changed my mind.”
O’Connor on cameras:” I’ve had 10 years of experience with cameras in the courtroom at the highest level of the Supreme Court of Ohio. … The cameras are so unobtrusive that I think both the litigants and the public that enters into our courtroom don’t even realize that they are being filmed. … I have to say, addressing cameras in the courtroom for the United States Supreme Court, I respectfully disagree with their posture and their position on this.
“Now, why is [camera access] important? One of the reasons is because the public cares. The public wants to see cameras. They want to see what is happening in our courtrooms, as they want to see what the transparency will provide with every branch of our government. And that’s extremely critical. The public receives information now in a way that is totally transformed and morphed into instantaneous communication.
“There was one instance where an attorney acknowledged that they were on camera and turned around and said, ‘For the benefit of the audience, I would like to start by saying,’ and then our chief justice said, ‘The only audience you should be concerned with are the seven members in front of you.’ That put a quick end to that. That was the only incident that I can think of in our 10-plus years of having oral arguments live.”
O’Connor on public understanding: “The second argument that’s proffered by members of the U.S. Supreme Court is the public just won’t understand what they’re watching. To me, that’s somewhat elitist view of our operation as judges and justices. Without cameras, the United States Supreme Court is missing out on a huge opportunity to foster greater public understanding of our judicial branch. Let’s help the public understand instead of keep them in the dark about the operation of the highest appellate court in the jurisdiction.
“We are all public servants first and foremost, whether you are chief justice of the United States Supreme Court, chief justice of the Ohio Supreme Court or a member of our legislative branch or executive branch. We are holding these honored positions for no reason other than to serve the public. We are institutions that serve the public, and we should be transparent to the public.”
Katyal on cameras: “I guess I’d issue a cautionary note about that. I at least can’t presume to tell the justices what to do. The concerns I don’t think are just [about] the grandstanding of the litigant. I think they genuinely are concerned that some of them will play to the crowd, instead of trying to further that temple for truth. Now, that may be an idiosyncratic decision just about the current people on the court and the current personalities, and everyone saying, ‘Look, we’re really worried about this. The system is working pretty well, maybe we shouldn’t change it.’
“The good news here is I do think this is generational, and I think it’s inevitable that cameras will be in the Supreme Court. That is my generation. We’re used to having cameras all the time. The default is we’re being recorded. We’re used to phones that have cameras, and cameras everywhere, taking pictures of us, and with the rise of Google Glass we’ll always be on camera. So the Supreme Court will look extremely idiosyncratic to be the one place in which is a camera-free zone.”
Williams on cameras: “There is little doubt that allowing public access to oral argument would I think deepen understanding of the court. And there’s no doubt that C-SPAN would televise the arguments in their entirety. They’d be available on the Internet and the other cable networks would obviously show it, if not the whole thing, extended excerpts.
“Now, Justice Scalia is the most outspoken about TV coverage. He says if it was allowed most people would never watch the entire one-hour argument and would instead rely on what he calls snippets on the evening news. And as a snippet meister myself, I can tell you that’s undoubtedly true. But it’s hard to see how that is a reason to keep cameras out of the court. After all, reports on oral argument that appear the next morning in the newspaper … they’re just going to have snippets too—that is, quotations. That’s the print equivalent of a snippet.
“Justice Breyer talked about television coverage earlier this year. … Here’s what he said: ‘People come to me and say, be careful, you think it won’t affect your questioning. They say, the first time on prime-time television somebody is taking a picture of you and using it in a way that you think is completely unfair and misses your point, in order to caricature what you’re trying to do because they don’t believe in the side they think you’re coming from, the next day you’ll watch a lot more carefully what you say. Now, that’s what’s worrying me.’
“I used to think that the main reason the justices opposed TV coverage was … that they didn’t want to be hassled in the line at Starbucks. And now I think, and I’m quite serious about this, that they fear being made fun of by Jon Stewart on “The Daily Show.”
Morrison on cameras: “I agree with everything that’s been said, but I’m a realist and incrementalist. So let me propose a high-tech solution. How about radio? And how about radio, starting with the decisions that they read from the bench, which can’t possibly involve an element of grandstanding since the justices have prepared what they’re going to say in advance.
“They already have audio, instantaneous audio. It goes into the Supreme Court lawyers lounge. All they have to do is to hook it up to either the Internet or a radio station and there: We’ve all got it. And then having tried that, they could go on to hear every oral argument on the same way.”
Williams on opinion announcements: “May I just say one thing about the opinion hand-down announcement for those of you who haven’t been in the court. When the court has a decision, whoever wrote the majority opinion summarizes the decision. Now, we’ve asked, why can’t we get the audio of that, because as you all know, if you’ve ever heard it, it’s usually pretty good and sometimes quite vivid, quite alive, pretty juicy.
“What they say is when there’s a decision, the published opinion of the court, they’ve seen that. They go back and forth. They all know what it’s going to say. But if there’s for example a 6-3 decision, the other five justices don’t really know how the writer of the majority opinion is going to summarize it. And sometimes members of the court have told us as they sit there and listen to the announcement being summarized, they say to themselves, wait a minute, that’s not what I signed onto.”
Morrison on recusals: “Let me make a suggestion. Not that the Congress pass laws requiring statements of reasons, although I would support that. I suggest something rather simple. I suggest what we used to call at camp in the Boy Scouts, a buddy system. When somebody has suggested that a justice recuse him or herself, you have a partner. Pete and I [for example] would be together, and you would agree with me that every time somebody suggested you’d be recused, that you would come to talk to me before you tell anybody what your answer is, and I promise to do the same to you. And it would be better if you were ideologically on other sides so there would be no strategy about, oh, please, step off this case so we get a 4-4 tie.
“I think if the justices did that, there would be a lot more feeling that this was not an individual decision, that it was somehow collectively made. And the idea of talking to someone you respect and have to work with everyday I think would have quite a leavening influence on the issue of recusal.”
O’Connor on recusals: “I was interested in what you said about the buddy system. That’s the first time that I’ve heard that being mentioned as a potential way to deal with it or an idea. In Ohio, we on the Supreme Court, if asked to recuse, can decide each justice for themselves whether or not they will recuse and just put a written statement on the docket, ‘I recuse,’ or, ‘After consideration I have decided not to recuse from this case,’ and that’s all there is to it. There is no explanation or reason given one way or the other.”
Starr on recusals: “I really do think that the justices should wrestle with and embark on a course of conduct that eliminates this entirely, and that is recusal because of financial interest. If one is going to become a justice of the Supreme Court, I think there’s a deal. It’s an implicit deal. Part of the bargain is you will so order your financial affairs so you can conduct yourself as a justice, so you can do your duty.
“The goal should be [that] no justice should step aside because of financial interest. He or she should divest themselves as promptly as possible of whatever that interest might be that would prevent him or her from doing his job.”
O’Connor on Supreme Court Exceptionalism: “Every judge, every court of law in this country, is an exceptional experience for our citizens to be able to go into a court, plead your case and rely on the rule of law. Our adopting and acceptance of the rule of law makes our judicial branch of government exceptional from the lowest court up to the very highest court.
“So, although I understand the magnificence, the grandeur and the scope and the consequences of the decisions that are handed down by the U.S. Supreme Court, that same exceptionalism and magnificence is present and should be present in every courtroom in this country.”
Starr on Supreme Court Exceptionalism: “Well, I would accept the premise about the majesty of the court, the majesty of the law more generally. The Supreme Court, as I wrote in my old book a long time ago, in terms of a constitutional democracy, it’s first among equals. … But the conclusion that, therefore, there should not be greater transparency, I don’t think follows at all from the premise. I think the right question is, in a constitutional democracy, what is in the public interest? That’s the focus.
“It seems to me that the kinds of concerns that have been lifted up, including Pete Williams’ wonderful observations that it really is ‘snippet phobia’ that has people concerned, or a Jon Stewart appearance—I think the reasonable response to that is grow an extra layer of skin. You have life tenure. You are a public figure and you have the blessing that your compensation can’t be reduced, and the independence of the judiciary. You have a life appointment. … No one is going to force you to step down. So how about now you’re giving something, how about you’re serving the public interest. … With all due respect, you’re not the oracle at Delphi telling us what the gods mean.”
Katyal on the role of Congress: “Both legally and practically I think the idea of Congress mandating the cameras or something like that is a nonstarter. It’s not going to happen and it would never be enforced. And so the real question is, what can you do short of that? I think two things can be done.
“One is, Congress can of course pass resolutions that urge the court to do this and can share their experience themselves being televised with the justices and what they think. They could have hearings to try and bring out all of this information and all that, and instead of confirmation hearings, they can really start to push for answers among nominees about what their views would be, which I think would be a helpful development on that.”
Starr on the role of Congress: “It really is, I think, a matter of focus and leadership and Congress can nudge. I would respectfully disagree that ‘Woe, the heavens fall’ if Congress passed a law. I don’t think that needs to happen. It’s sort of inconsistent with comity, but it’s not a violation of the separation of powers, and if it’s the law, I think the Supreme Court of the United States would obey the law.
“But, hopefully, through nudging, gentle nudging and focusing on what is in the public interest, what do we need in light of the collapse of civic education in the United States, is transparency and accountability, and why don’t you do it yourselves?”
Katyal on public perception: “The idea that if the public sees what’s going on, that they’re not going to like it, so therefore we shouldn’t allow them to see it, strikes me as … [not] right at the end of the day. I do think that if I could—if I were able to talk to the justices—I would say I actually think the legitimacy goes up. You [the court] have a great story to tell, something that everyone should see. I can understand [that] from their perspective they think things are working pretty well, and all they can do as stewards of this great institutions. I think there’s a feeling among them that they could only mess it up. And I think it’s our duty to try to explain to them why that’s not so, weighing all the empirical evidence to be mustered, but it’s not an easy sell.”
Starr on public perception: “I can speak on the basis of 36 arguments and being up there for almost countless others. The court works brilliantly, and the process is a very serious process. It has its moments of humor and lightness of touch and so forth. … It is a very serious process. You’re professionals doing a very professional work. You’re not sitting there reading ‘Green Eggs and Ham.’ ”
Contact Tony Mauro at firstname.lastname@example.org.