September 02, 2011 Articles

Should Supreme Court Arguments Be Televised?

Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.

By Stephen Feldman

Whether the U.S. Supreme Court should follow the Canadian Supreme Court’s practice of televising oral arguments was a central topic at a program at the ABA Annual Meeting in Toronto on August 5 sponsored by the Appellate Practice Committee. The program, entitled, “Our Highest Courts: A Comparison of the Canadian and United States Supreme Courts,” featured a panel of Justice Ian Binnie of the Canadian Supreme Court, the Canadian appellate practitioner Thomas Heintzman, the former D.C. Circuit judge and Solicitor General Ken Starr, and the former Solicitor General Drew Days. Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, moderated the panel.

Justice Binnie, a 13-year veteran of the court, started the discussion on the issue of televising oral arguments by recounting the first case he heard as a justice. In that case, the court addressed whether the province of Quebec had the right to secede and, if so, on what terms. Because of the unique nature of the case, as well as its national importance, the Canadian Supreme Court agreed to a four-day hearing that, like its other oral arguments, was televised nationally. Justice Binnie described the argument as “a massive civics lesson.”

Justice Binnie said that, more generally, televised oral arguments create a more informed electorate, give the Canadian public a flavor of the country’s judicial function, and enhance the legitimacy of the court. He hasn’t seen attorneys or judges grandstand for the cameras—which has been a key argument for those who oppose televised arguments in the U.S. Supreme Court. He also downplayed the notion that judges would become celebrities who could not anonymously go grocery shopping if oral arguments were televised.

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