April 19, 2021 Feature

Cameras in the Courtroom: An Ill-Advised Policy

There are simply better ways than cameras to enhance court-room openness, particularly in federal district courts and the U.S. Supreme Court.

Nancy S. Marder

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There is an ongoing debate about whether federal courts in the United States should permit cameras in the courtroom. All 50 states now permit them at some level of their state court system. The media have long advocated for them, and they have gained the support of some members of Congress, various academics, and even a few federal judges.

In spite of that pressure, no federal district courts permit cameras in the courtroom, and only the Second, Third, and Ninth Circuits permit cameras during oral arguments. Although the U.S. Supreme Court has been the primary focus of the pressure, the justices still prohibit cameras.

There are simply better ways than cameras to enhance courtroom openness, particularly in federal district courts and the U.S. Supreme Court. Federal judges should always strive toward greater openness and transparency, but they can do that through incremental steps that do not pose a danger to the fairness of trials, the dignity of courtroom proceedings, or the respect in which federal courts are held.

The power of images—whether on television or on the internet—is that they can distract viewers from the substance of the arguments, blur the distinction between court proceedings and entertainment, and lead to unintended consequences. Incremental steps, such as making transcripts and audio recordings of courtroom proceedings immediately available online, do not run those risks.

Illustration by Doug Thompson

Illustration by Doug Thompson

Existing Transparency

Proponents of cameras in the courtroom suggest that the public needs to see court proceedings for courts to be transparent, but there are several significant ways in which courts are already open and transparent. At every level of the federal system, courtroom proceedings are open to the public and press. At every level, judges—including the justices at the Supreme Court—explain their decisions in signed written opinions. Outside the courtroom, judges also explain the work they do in their speeches, talks, and books.

In district court, anyone can observe jury or bench trials, watch motions being argued, or attend an arraignment or sentencing. And in most cases, all the court filings are publicly available. In fact, whereas in the past one had to go to the clerk’s office to request a particular case file, now almost everything can be accessed online.

At the appellate level, the public can attend oral argument. In addition, when members of the press attend proceedings in any of those courtrooms, they report on them and provide the public with another way of learning about the work that takes place there.

Perhaps the most significant way in which federal courts are open and transparent about the work they do is that judges write opinions in which they provide reasons for their decisions. As Justice Anthony Kennedy once explained to a subcommittee of the House of Representatives Appropriations Committee, the justices are judged by what they write. In addition, appellate court judges review the opinions of lower court judges, and the legal community offers critiques of judicial opinions.

Even if most members of the public do not read judicial opinions, they are likely to read accounts of them in newspapers or online. Thus, the real work of the federal judiciary—its proceedings and the bases for its decisions—is open to, and scrutinized by, judges, lawyers, law professors, the press, and the public.

Federal judges also teach the public about the work they do by writing articles and books, giving speeches, conducting seminars, meeting with visitors, and even making appearances on popular television shows. The U.S. Supreme Court justices meet with visiting dignitaries, foreign judges, and schoolchildren, and answer their questions. They give lectures, speeches, or talks at law schools and write articles for law reviews. To reach younger audiences, they even make appearances on Sesame Street (Justice Sotomayor) and The Colbert Report (Justice Stevens after he retired).

The bench and bar invite the justices to offer remarks at their meetings, conferences, and awards ceremonies. The chief justice serves as the public face of the Supreme Court. He performs numerous public functions, from presiding over oral argument at the Supreme Court to administering the oath of office to the president on Inauguration Day.

The Court also performs public outreach by maintaining a website so that lawyers, the press, and the public have easy access to Supreme Court opinions, the Court’s calendar, and transcripts and audio recordings of oral arguments and dissents from the bench.

The Risks of Cameras

In spite of all the many and varied steps that federal courts take to be open and transparent, some in Congress and academia have advocated for greater transparency by having cameras in the courtroom, even though cameras pose substantial risks to our federal courts. The risks are greater in the district courts and in the U.S. Supreme Court, and less pronounced in the circuit courts. Those risks include changing the behavior of participants in the courtroom; distracting viewers, who will focus on what they see instead of what they hear; and producing unintended consequences, such as fewer oral arguments and more work done behind the scenes in the privacy of judges’ chambers.

In district court, judges’ and lawyers’ behavior might change if they know they are being filmed. Although proponents of cameras say that after the first few minutes, judges and lawyers will forget the camera’s presence, that certainly was not the case in several high-profile trials in state courts.

For example, the criminal trial of O. J. Simpson in California offered a sobering lesson of what can go wrong when cameras are permitted in trial courts. The lawyers played to the television audience; the judge lost control over the lawyers; and round-the-clock media coverage transformed the trial into a spectacle. Although the case might have been extreme, it stood as a stark example of the ways in which cameras could distort trial participants’ behavior, especially in high-profile cases with the largest number of viewers.

In district court, judges also worry that cameras will alter witnesses’ behavior, making them more nervous about their testimony, and will make prospective jurors even more unwilling to serve, especially if some jurors end up appearing on television inadvertently. Given trial judges’ need to maintain control over the courtroom and to ensure a fair trial, cameras present a number of foreseeable—and unforeseeable—risks for district courts.

At the Supreme Court, the justices similarly worry that cameras could alter the justices’ or lawyers’ behavior. During oral argument, the participants need to focus on the argument and not play to a television audience. The justices need to feel free to explore hypotheticals, however far-fetched they might seem to non-lawyers. There is also an intimacy in the courtroom—the lawyer stands at a podium that is quite close to the bench where the justices are seated—which might be lost when lawyers and justices become self-conscious about the large viewing audience.

Without cameras, the justices focus on the argument, as does the audience in the courtroom and the audience listening to the audio. A viewing audience would no longer listen as carefully to the argument; instead, viewers are likely to be distracted by appearances, body language, and tics. Viewers focus on the visual, which means they pay attention to the quirks of the participants and not to the substance of the argument.

Close-up shots make that misplaced focus even more likely than if viewers were sitting in the courtroom. Consider how distracting an individual’s movement is during an online meeting, even though it is easily overlooked in a face-to-face meeting. In the latter, it is easy to ignore; in the former, it dominates the screen.

Cameras at the Supreme Court are also likely to undermine the integrity and proper role of oral argument. Television viewers are likely to look for entertainment in a televised oral argument, just as they do when they watch most television programs. Thus, they are likely to focus on gaffes, and gaffes are likely to enjoy a viral afterlife on the web.

Television viewers unfamiliar with the Supreme Court are also likely to conclude that oral argument constitutes the beginning and end of the justices’ decision-making process, rather than recognizing that it is only the starting point. Much of the justices’ decision-making takes place while drafting opinions, which occurs in chambers outside the public’s view. Not only will oral argument appear to play a greater role than it actually does in judicial decision-making, but also it will lead commentators to focus on predicting how justices will vote, in an effort to make the argument more understandable and riveting to a viewing audience.

The oral arguments that are likely to garner the most attention are the arguments on controversial subjects. Although they are important, they are not the mainstay of the Court’s docket. Commentators, however, are likely to emphasize to viewers that the Court decides such cases much as a legislature does—with the justices simply voting according to their individual policy preferences—rather than explaining how the justices decide based on precedents and methods of statutory or constitutional interpretation.

There is also the danger of unintended consequences. Proponents of cameras in the courtroom believe that cameras will lead to greater openness and transparency, but institutions are not static. If the justices permit cameras in the courtroom and then find that cameras undermine the usefulness of oral argument, they might simply choose to limit public hearings and conduct nearly all of their work behind closed doors. For instance, they could reduce the amount of time for each oral argument (as was done in the past, from one hour to 30 minutes per side) or develop new criteria to decide which cases require oral argument (as the federal appellate courts have done).

Thus, cameras in the courtroom, which according to proponents are supposed to make oral argument at the Supreme Court more open and transparent to the public, could actually reduce the availability of oral argument to the public.

Other Methods of Increasing Transparency

While cameras in the courtroom are not the answer to making federal district courts and the Supreme Court more open and transparent, there are incremental steps that these courts can and should take to make their work more accessible to the public. These steps would focus the public’s attention on the arguments being made rather than on visual distractions.

Before the COVID-19 crisis, the Supreme Court provided a transcript of oral argument on the same day as the argument, but it did not provide an audio recording of the argument on the same day. There had been exceptions, such as Bush v. Gore, 531 U.S. 98 (2000), and the National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (on the Affordable Care Act), but the Court should extend that practice to all cases.

Perhaps the Court’s experiment during the COVID-19 crisis with holding oral argument by telephone conference and permitting the press to livestream it on C-SPAN will lead it to provide same-day audio of all of its oral arguments after the crisis. Although that experiment, which began May 4, 2020, was necessitated by the pandemic, the Court could livestream its audio even when it is able to return to the courtroom. Federal district courts could also follow suit by making transcripts and audio recordings of courtroom proceedings available online, if they have not already done so.

Cameras in the courtroom will not make the substance of court proceedings more transparent to the public, but cameras do create the risk of bringing politics, entertainment, and public pressure into the courtroom. Such potential harms suggest that any experimentation with cameras should be slow, incremental, and limited to oral arguments in the federal circuit courts. And if cameras do have deleterious effects in those settings, they should be removed before becoming a misguided and divisive fixture. Although the pandemic has shown us the value of cameras in permitting online court proceedings, the pandemic has also highlighted how irreplaceable the in-person courtroom experience is and how essential it is that we safeguard it.

Nancy S. Marder

The author is professor of law and director of the Justice John Paul Stevens Jury Center at the Illinois Institute of Technology Chicago-Kent College of Law.