The U.S. Supreme Court appears to have to shut the door on livestreaming audio or video of its oral arguments for the foreseeable future.
In an Oct. 2 letter to four members of Congress who sought live audio access for the argument Tuesday in the high-profile gerrymandering case Gill v. Whitford, counselor to the chief justice Jeffrey Minear said “the court is unable to accommodate your request.”
Minear, who indicated he was writing on behalf of Chief Justice John Roberts Jr., said, “The Chief Justice appreciates and shares your ultimate goal of increasing public transparency and improving public understanding of the Supreme Court.”
But, Minear added, “I am sure you are, however, familiar with the Justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices.” For that reason, the letter stated, the request for audio access was denied.
Sonja West, a media law professor at the University of Georgia School of Law, said the Minear letter was “incredibly disappointing.” She said livestreaming of the court’s arguments is “clearly the logical next step if the goal truly is to connect with the public. The justices and attorneys already know that they are being recorded for the public, so there’s no reason to think that livestreaming the audio would affect their behavior or the dignity of the proceedings.” West clerked for Justice John Paul Stevens in 1999 and 2000.
Beginning with the 2000 cases Bush v. Palm Beach County Canvassing Board and Bush v. Gore, the high court used to agree on occasion to release oral argument audio on a same-day—but not live—basis. But that practice has dwindled in recent years, apparently because of the concerns Minear mentioned in his letter. Now, the audio of arguments made on Mondays, Tuesday and Wednesdays are made available on Fridays of argument weeks—too late to be of much use for broadcast organizations but useful for researchers and practitioners.
Minear’s letter pointed to the release of audio as well as the online posting of opinions and argument transcripts as examples of greater transparency, along with the court’s recent announcement of an electronic filing system that will make virtually all court filings accessible online. “The court will continue to examine ways in which it can enhance the public’s understanding of its operations while preserving the integrity of its proceedings,” Minear wrote. The letter was made public by Fix the Court, which advocates for greater transparency at the high court. Executive director Gabe Roth has worked with members of Congress to assess their interest in court transparency issues.
Justices are often asked about their views on broadcast access to court proceedings, both at their confirmation hearings and in public appearances after they join the court. As nominees, they typically embrace or at least promise to consider the idea. But once they become justices, they tend to change their minds for fear of spoiling the dynamics of oral arguments—even though some lower federal courts and most state courts have allowed such access without calamity.
The fact that justices’ concerns have now been spelled out in writing suggests that Roberts may want to lower public expectations of any movement soon on the issue of broadcast access.
In their Sept. 29 letter to Roberts, Reps. Gerald Connolly, D-Va., Mike Quigley, D-Ill., Ted Poe, R-Texas, and Jerrold Nadler, D-N.Y., urged the court to livestream audio of the Gill case as “a laudable step forward in the path toward full transparency.” That full transparency, they also said, would come if and when the court allows televising of all oral arguments “to increase public transparency and improve understanding of its proceedings.”
The congressmen are among 11 co-sponsors of the Cameras in the Courtroom Act (H.R. 464) which would, if passed, require the Supreme Court to permit television coverage of all open sessions of the court, unless a majority of justices agree that broadcast in a particular case would violate the due process rights of any of the parties involved.