Early next year, the Supreme Court of the United States will hear its first abortion case since 2007. It will decide on a controversial Texas law that has closed many of the state’s abortion clinics. However, very few people, including the majority of the country’s stakeholders, will have the opportunity to watch the Court’s oral arguments. Currently, cameras of any kind are not allowed in the courtroom. Despite strong public support for the broadcast their proceedings, the Court is unlikely to allow it in the near future. This leaves citizens and legislators without a mechanism to participate or engage with the highest court in the nation.
Federal Rule of Criminal Procedure 53 bars the broadcast of Supreme Court oral arguments. It states “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” The first and only video footage recorded of an oral argument is a roughly two minute clip smuggled out of 2014’s McCutcheon v. F.E.C. case by campaign finance protesters. With that exception, a commissioned painting is the best viewing option available to the majority of citizens in 2016.
Studies have found a great deal of public support for a televised Supreme Court. In a 2015 Penn Schoen Berland study prepared for CSPAN, 76 percent of the participants said oral arguments should be televised. Likewise, in a 2014 McLaughlin & Associates survey, 74.1 percent of respondents said they support television cameras in the Courtroom.
The citizens in these studies aren’t alone; legislators regularly (and, so far, unsuccessfully) draft bipartisan bills giving the Supreme Court Justices a mechanism to allow cameras into their oral arguments. The Sunshine in the Courtroom Act is one such legislative effort pushing for a more transparent Court.
Representative Steve King of Iowa, who introduced the House version of the Act, told a 2014 Judiciary Subcommittee that “It was a significant maneuver” for him to get a seat in the Courthouse during the Burwell v. Hobby Lobby case. “Something like Bush v. Gore can be decided in the Supreme Court with a relative handful of people having almost exclusive access to get in to hear a cases like that.”
Most Supreme Court Justices want their bench to remain a strictly camera-free affair. Retired Justice David Souter was vehemently opposed to television broadcast, telling a judiciary committee “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”
The opposition brings a well-worn list of potential issues. They claim cameras will be obtrusive or they will change the dynamic of the Court. However, starting in 2011 and ending in 2015, 14 district courts nation-wide volunteered to participate in a program where their hearings were filmed. The resulting footage fails to show any change in courtroom behavior. In the district courts, we find the camera equipment sitting quiet and well-behaved, far from the mess the Justices would prefer to advertise. No judicial Armageddon, just judges and lawyers doing their jobs in front of an interested public.
In 2007, Justice Anthony Kennedy told the House Appropriations Subcommittee that he feared his colleagues would play to the cameras: “If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite.” If our highest court can be corrupted by the mere addition of cameras, then why should we trust it to make legally sound decisions in the first place? Moreover, the stakes in a Supreme Court case can be incredibly high. Millions are affected by a decision like 2015’s Obergefell v. Hodges. Is the Court so irresponsible that it would botch such a case for the sake of a TV news clip?
Put simply, the Supreme Court is a remarkably powerful and unelected body. Its decision affect millions, and there is very little the public can do to hold the Justices accountable. Legislators and citizens alike are asking for a televised Court. The Justices need to honor that request.