The Judicial Conference of the United States, the federal judiciary’s policy-making branch, approved a pilot project last week to bring cameras into some civil proceedings. Parties can veto cameras, and the video will never show jurors’ faces. The cameras will be operated by court personnel, not news organizations.
According to a spokesman from the Administrative Office of the United States Courts, six district courts attempted similar recordings in the early 1990s, “but the program was never made permanent because of concerns about the impact on jurors and witnesses.” Of course, video is much more viral today than in the ’90s, in no small part due to the internet and YouTube. How the increased demand for transparency and access will balance with concerns about jurors and witnesses has yet to play out.
The JCUS decision doesn’t apply to the Supreme Court, which voted 5-4 earlier this year to ban video of Judge Vaughn Walker’s California Proposition 8 trial due to fears supporters of Prop. 8 would be harassed for testifying.
(Coincidentally, reenactments of the Prop. 8 trial were very popular on YouTube.)
Only a few justices have openly discussed their feelings about cameras in the Supreme Court. Justice Stephen Breyer, recently touring to promote a new book, told NBC’s Brian Williams expressed worry witnesses and such could fear being watched by their whole community but did acknowledge the possible benefits.
The answer to me is not obvious. We haven’t voted on it. I haven’t had to take a position. The reasons for doing it are obvious. I mean, television is part of the press. And I think wouldn’t it have been a wonderful thing if television could’ve been in the courtroom and seen the oral argument, for example, in the case of term limits, and many of these cases. You would’ve seen nine people struggling towards an answer in a very, very difficult kind of question.
The court’s newest justice, Elena Kagan, is on record as being fairly pro-camera.
If cameras were in the courtroom, the American public would see an amazing and extraordinary event. This court I think is so smart and so prepared and so engaged. And everybody who gets up there at the podium is – the toughest questions, the most challenging questions are thrown at that person. … I think if you put the cameras in the courtroom, people would see, ‘Wow,’ they would see an institution of their government I think working at a really high level. So that’s one plus factor for doing it.
But would cameras in the Supreme Court really help demystify its proceedings and power? In 2008 Linda Greenhouse, who covered the court for 30 years at the New York Times, said that while she is in favor of expanded video access, cameras in the courtroom may not make understanding the court any easier.
For one thing, the hourlong oral argument represents only a small part of the decisional process — the tip of the iceberg, you might say. For another, the arguments are not all that easily comprehensible to a casual viewer. I don’t mean that to sound condescending. But it’s important to realize that the arguments don’t proceed in a linear fashion. There is almost never a point at which the lawyer describes the case. It’s just assumed that the justices know the facts of the case and know the relevant law. The real question in the argument — whether stated or not — is: if we rule your way in your case, what are we buying into? What’s the implication for the next case or cases? The questions can range so far afield that not infrequently, even when I have thought I was fully prepared to listen to the argument (and for that reason, my practice was never to even bother going to an argument if I hadn’t read the briefs) I would be left scratching my head and wondering if somehow I was at the argument for the wrong case.
And following the Supreme Court’s minutiae was her job! Last week Arlen Specter introduced a bill requiring the court to allow cameras into its open sessions (although the legislature really has no way to enforce that, aside from cutting the courts’ budget, a dicey political move) unless the majority vote that doing so would violate due process for one or more of the parties.
The court already allows press and public access, and releases transcripts and audio recordings of its public proceedings — admittedly, months or even years later. Furthermore, the justices seem to be worried about creating pressure to produce sound bites for television news, something that anyone who has read through a handful of court transcripts can see does not happen now.
It seems the Supreme Court, at least for now, will continue on camera-less. In a few years, however, once this pilot program in the lower federal courts plays out and access to video becomes more and more available to the public, the court may have to reconsider its stance. Unfortunately, video of oral arguments would provide about as much transparency into the judiciary as C-SPAN does into the legislature or press conferences do into the executive.