December 01, 2011

Hearing Revives Debate on Televising Supreme Court

A Dec. 6 hearing before the Senate Judiciary Subcommittee on Administrative Law and the Courts revived the debate about whether the U.S. Supreme Court’s open proceedings should be televised.

“Supreme Court decisions can have a transformative effect on the lives of Americans,” subcommittee Chair Amy Klobuchar (D-Minn.) said in her opening statement. “Allowing television cameras in the courtroom would increase public confidence in government and help ensure a well-functioning democracy,” she emphasized.

Klobuchar is a cosponsor of S. 1945, the Cameras in the Courtroom Act of 2011, a bipartisan bill introduced by Sens. Richard Durbin (D-Ill.) and Charles E. Grassley (R-Iowa) that would require television coverage of all open sessions of the Supreme Court unless the court decides by a majority vote that doing so would constitute a violation of the due process rights of one or more of the parties involved in the case before the court. Companion legislation, H.R. 3572, was introduced in the House by Rep. Gerald E. Connolly (D-Va.).

Several witnesses at the hearing agreed with Klobuchar, including former Sen. Arlen Specter (R-Pa.), a former chair of the Senate Judiciary Committee who sponsored similar legislation that was reported out of the committee in 2006, 2008 and 2010 but never considered on the Senate floor.        

“People need to know what the court is doing to guarantee that the public can let the court know when the public’s values are not being recognized,” Specter testified. He pointed out that the supreme courts of most states, Great Britain and Canada allow their proceedings to be televised. He added that polls reveal that 80 percent of those polled express support for televising the court when they learn that the Supreme Court chamber accommodates only approximately 300 observers and people are permitted to stay only three minutes.

Specter said he believes that Congress has the authority to mandate television coverage because of congressional authority to determine other administrative matters for the court, including the day the court will convene, the number of justices required for a quorum, the timetable on habeas corpus cases, what cases the Supreme Court is required to hear, and the court’s jurisdiction.

Anthony J. Scirica, circuit judge for the U.S. Court of Appeals for the Third Circuit, disagreed, saying that a congressional mandate that the Supreme Court televise its proceedings likely raises significant constitutional issues. “A court that is charged with the duty under our Constitution to ‘say what the law is,’ that has merited the confidence of the American people, and that has made its processes ever more accessible should be afforded deference in its own governance, including the decision whether, when, or how cameras should be present during its oral arguments,” he said.

Washington, D.C., lawyer Tom Goldstein, co-founder and publisher of the SCOTUSblog, testified that the Supreme Court’s recent efforts to increase the public’s access through development of its website, the immediate publishing of transcripts, and timely release of audio of arguments cannot overcome significant obstacles to access to the court’s public proceedings.      “Broadcasts of court proceedings will reach segments of the public in a way that transcripts and audio recordings cannot,” he concluded.

Earlier this year the Senate Judiciary Committee approved S. 410, a bill to allow federal trial and appellate judges to permit the photographing, electronic recording, broadcasting or televising to the public of court proceedings over which they preside except when the action might constitute a violation of any party’s due process rights. A similar bill, H.R. 2802, is pending in the House Judiciary Committee.

Since 1996, the Judicial Conference has authorized each court of appeals to determine the circumstances in which cameras may be permitted in their courts in civil cases, and the conference is conducting a three-year pilot project to evaluate the effect of cameras in federal district courts and the public release of digital video recordings of some civil proceedings.

The ABA supports further experimentation with cameras in the federal courts, including the Supreme Court, under guidelines promulgated by the Judicial Conference. Courts that conduct their business openly and under public scrutiny protect the integrity of the federal judicial system by guaranteeing accountability to the people they serve, according to the association.