In government, few things are valued more by “we the people” than transparency—and understandably so, since transparency is the means by which we are able to monitor and hold accountable those who administer a system that governs us all. However, the extent to which all three branches of government have an equal obligation to transparency is unclear, particularly when it comes to the work of our judiciary and our nation’s highest court, the unelected branch of government. Supporters of open government have long advocated for the Supreme Court to permit cameras to livestream oral arguments. While the benefits of increased access are significant and seem obvious, the Court has long resisted. Then came a pandemic and along with all of us, courts were forced to adjust, including our Supreme Court. In April 2020, the Court announced that it would conduct oral arguments—for the first time ever—via telephone, and not only that, but the audio would also be livestreamed via major media networks. Like millions of Americans, the Justices of the United States Supreme Court and the attorneys that appear before them were working from home (or, presumably, in solitude somewhere) and would all participate remotely. One year later, in April 2021, the Court was still conducting oral arguments via telephone and livestreaming the audio.
Despite the Court’s longstanding reservations, the sky did not fall when it began livestreaming audio last May. In fact, none of the Court’s misgivings seem to have materialized. Whether the practice will continue, however, is unclear. By removing any gray area between access and no access, the pandemic forced the Court to choose between the two. It could either deny all live public access to oral arguments or it could permit something it had long resisted: livestreaming the audio for the public to access. To their credit, the Justices chose access. Having dipped its toe into technology that expanded public access without incident (aside from the sound of a toilet flushing in the background during one argument), it might be time for the Court to reconsider its stance on cameras in its hallowed courtroom.
What’s the big deal?
At a time when everyone was doing everything online out of necessity, it may not have seemed like much, but the Supreme Court’s decision to livestream oral arguments in the face of a pandemic was not at all a foregone conclusion. Indeed, the Court’s announcement in April 2020 was astonishing to many, because for as long as the Court had received requests to livestream oral arguments, it had always refused them with little explanation.
Cameras in the courtroom have been the subject of debate since at least 1946, when the Rules of Criminal Procedure first went into effect and set forth a broad prohibition against photographing and broadcasting criminal proceedings. In 1972, the Code of Conduct for United States Judges expanded the prohibition to both civil and criminal proceedings. Incremental change began in the late 1980s. After demonstrations urging the Supreme Court to permit cameras in the courtroom and a letter from C-SPAN offering to help make that a reality, in 1988, then Chief Justice Rehnquist formed an ad hoc committee to study the issue. At the committee’s recommendation, in 1990, a pilot program began live broadcasting civil proceedings in six trial and two appellate courts. Also at the committee’s recommendation, the Code of Conduct was amended to eliminate the blanket prohibition against cameras. A policy specifically permitting cameras—at a judge’s discretion—took its place.
While other federal courts expanded access to the public through livestreamed, televised proceedings, the progress was much slower in our nation’s highest court. It was not until 2017 that the transcripts of oral arguments were made available to the public through the Court’s website on the same day that an argument took place. Until May of last year, audio was typically not available until the end of each argument week, though the Court made exceptions to allow same-day access in some high profile cases. To this day, the Court has never allowed its public oral arguments or decision announcements to be televised, videotaped, or photographed. The only way to see an oral argument remains physically showing up on First Street N.E. in Washington, D.C., waiting in line, and being one of the 50-100 members of the public admitted on a “first-come, first-seated basis.” During the pandemic, however, not even that was possible.
Today—seventy-five years after the debate began and more than thirty years after the federal prohibition was lifted—cameras are permitted in every state’s highest appellate court during oral arguments. In New Mexico, where I call home, our Supreme Court has permitted live television coverage and cameras in its courtroom since the 1980s. For almost seven years, I worked alongside the judges and justices in New Mexico’s appellate courts and observed countless oral arguments. To put it plainly, the experience cannot be replicated. When I left the judiciary to pursue a career in academia, I was fortunate to be able to continue watching oral arguments via livestream because of the Court’s foresight and commitment to openness. Sure, the experience is a bit different (watching in my pajamas while making breakfast for my kids was new to me), but it is better than not being able to watch at all. I am not the only one who has benefited from being able to observe. Like any member of the public, my students—who attended classes remotely last year and were scattered across New Mexico’s 121,365 square miles—were also able to watch the Court at work. In ensuring statewide access to oral arguments, our Chief Justice explained:
“New Mexico courts recognize the critical importance of allowing the public to see and hear for themselves how our justice system fairly and impartially resolves legal disputes. Without that transparency and access, we risk an erosion of public confidence in the rule of law and trust in our independent judicial branch of government. Our democracy depends on maintaining that public confidence and trust.”
In July, the New Mexico Supreme Court began hearing oral arguments in person again, and the Court announced that it would continue to livestream oral arguments on its website. I spoke with the Chief Justice recently and asked him if he saw any downside to increasing public access in this way. Without hesitation, he said, “No.” The only problems, he said, were related to issues with technology.
Meanwhile, the Supreme Court of the United States continues to resist, though it is unclear why. At times, certain justices have seemed receptive to the idea. Though not specifically referring to oral arguments, the late Justice Frankfurter, who believed that “public confidence in the judiciary hinges on the public’s perception of it,” once wished “the news media would cover the Supreme Court as thoroughly as it did the World Series.” Of the current Justices, four have expressed a willingness to consider allowing cameras in the Court during their respective confirmation hearings. Other Justices remain adamantly opposed.
The various reasons offered over the years have been vague, unsatisfactory, and—frankly—all over the map. The most common sources of resistance, however, seem to be rooted in concerns related to misinformation, potential effects on courtroom behavior, and institutional tradition.
Misinformation
In 2012, the late Justice Antonin Scalia was asked about televising oral arguments and explained: “I am against it because I do not believe, as the proponents of television in the court assert, that the purpose of televising our hearings would be to educate the American people.” The Justice’s words represent one view consistently advanced by the Court—that somehow seeing the arguments on television will not actually serve the stated purpose of educating the American public.
To many Americans, courts are unfamiliar entities. This lack of familiarity with the judicial system breeds deep misconceptions about how courts operate, especially when it comes to appellate courts. Unlike the courts seen by the American public on television, appellate courts have no need for a jury box or witness stand because there are no members of the jury and there are no witnesses. An appellate court’s work is done primarily outside a courtroom and mostly on paper. The nature of the appellate decision-making process means that most of the work is done outside of the public eye. Cases go in, opinions come out. What happens in between is a mystery to most. Oral arguments are the sole piece of the deliberative process that the public can see and hear for themselves. It is the only way to watch appellate courts at work, making it even more important that courts make oral arguments as accessible as possible. Denying meaningful access to the only part of the deliberative process available to the public contributes to public misunderstanding of what the Court does and undermines the trust and confidence that we all need the public to have in our judicial system.
Effects on Courtroom Behavior
Concerns related to the impact of cameras in the courtroom and the effect they may have on the decision-making process have been persistent and the most common. In 2017, the Court denied a request to livestream the audio in a gerrymandering case based on 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.” This general resistance, rather clear and specific reasons, is characteristic of the Court’s justifications over the years.
It is true that the judiciary was meant to be relatively insulated from the outside world so that courts can carry out their intended purpose as neutral arbiters of the law. The Justices of the Supreme Court do not answer to the people in the same way that the elected members of the executive and legislative branches do, and so the relationship they have with the public is inherently different. It is precisely for that reason that the Court’s hesitancy to permit cameras is so confusing. Our elected officials, who answer directly to their constituents, undoubtedly behave differently when cameras are watching. However, cameras should have little effect on judges with life tenure who maintain that they operate above the fray and without regard to political or public pressure of any kind. In the same vein, the attorneys appearing before the Court are constrained by rules of professional conduct, which should prevent any grandstanding on their part.
Institutional Tradition
It is also true that courts are generally slow to adapt to and adopt new technology, or as Chief Justice Roberts has called it, “the next big thing.” In defending the Court’s approach in 2015, the Chief Justice somehow managed to frame greater access to the Court through the use of technology as a denial of equal access to justice: “[T]he courts cannot decide to serve only the most technically-capable or well-equipped segments of the public,” he maintained. It cannot be true that equal access to justice means limiting the number of people who can watch oral arguments to the 50-100 able to physically show up in Washington, D.C. on a given day while excluding millions of Americans without the ability, financial or otherwise, to be there in person. According to the Pew Research Center, 93% of Americans use the internet and three-quarters have access to the internet in their homes. So, while it is true that not all Americans have access to the internet—a significant problem undoubtedly—expanding access to oral arguments to the millions who do sounds like more equitable access than what the Court is presently doing.
Conclusion
The Court’s desire to protect an institution of unquestionable importance is commendable. Cameras, however, pose no threat to the Court. By hiding from cameras, the Court misses the opportunity to build trust and confidence in the judiciary by allowing the public to see it carrying out its duties responsibly and transparently. Oral arguments are already available to the public via transcripts and audio, but cameras have the ability to capture information in a way no other medium can. Having already allowed public access via other mediums, now including live audio, it might be time for the Court to take one more step forward. Most Americans care far less about the work of the Supreme Court than they should, considering that its decisions impact every corner of our nation. If the Court were more visible, that might change. Let’s hope that with the experience of the past year, the Court’s views may be changing.