For six days in May, the Supreme Court will hear oral arguments by phone. The court has picked 10 arguments, spanning 13 cases, that it has deemed time sensitive. It will let lawyers argue their positions via conference call. The audio feed will be made available, live, to the press and members of the general public.
It’s a momentous step for the Supreme Court, which has never before allowed live audio or video coverage of its arguments. In The New York Times, Adam Liptak reported that the court has made same-day audio recordings of arguments available only 27 times in the past two decades.
While it’s significant that the court is willing to adopt technology that has been available since the 1950s in order to keep working under coronavirus social-distancing protocols, the decision highlights the sheer absurdity of the court’s continued stance against cameras in the courtroom. Rather than jump feetfirst into the present and handle its full docket online, with audio and video, as other courts are doing, the Supreme Court is now trying to cherry-pick which cases are truly important—as if any case the Supreme Court decides to hear isn’t critical to some person, group, or collection of rights—because it doesn’t want to make it too easy for the public to hear and see what it’s doing.
The argument against cameras in the courtroom has always been a little bit tortured. Courts are public institutions. All courts (except the Foreign Intelligence Surveillance Court) are open to the public. If you want to see a Supreme Court argument, all you have to do is wake up early and stand in line. Putting a live feed in the courtroom is simply about making it easier for the public to hear and see what it’s already entitled to hear and see.
But the Supreme Court has resisted making itself more transparent and easier to access. The argument against cameras—and it comes from both conservative and liberal justices—is that their presence will result in the C-SPAN effect, encouraging advocates to mug for the cameras and make arguments in sound bites that play well on cable news when they’re supposed to be making highly technical arguments to the court. There’s also some worry that justices will be afraid to ask tough questions that are legally relevant but might make them look bad.
For what it’s worth, I agree with most of the arguments against live coverage of the Supreme Court. I think lawyers, especially Republican ones, would attempt to make cute yet legally irrelevant comments to become stars on Fox News. And every congressional hearing I’ve watched tells me that humans are bad at resisting the urge to turn questions into speeches. There should be a German word for “stupidity and pandering induced by being on camera”: Dummfernsehendoof.
Where I disagree is that I just don’t think the negatives come close to outweighing the positives of increased transparency. Most people don’t understand what the Supreme Court does, and that’s in part because most people never get to see the court doing it. It might be hard for nonlawyers to follow along with the technical legal arguments involving, say, the statutory interpretation of Title VII of the Civil Rights Act. But “it’s OK to fire people because they’re gay” is the core argument that would pierce through the jargon. People would notice which justices thought that was a good idea, and people might start to ask which political party insists on appointing such justices.
The Supreme Court is a political institution just like Congress or the presidency. It’s long past time we started covering the court like we cover the legislative and executive branches, and opening up access to its proceedings would be the first step in that process. Right now, in part because of the limited access the court grants to its proceedings, reporting on the Supreme Court is largely left to a cadre of reporters sponsored by the legacy media. They’re a skilled and professional group, but they are generally male and blindingly white. (Supreme Court reporters make the White House press corps look like a rainbow coalition.) Coverage of the court reflects those white male sensibilities. When reports about court cases seem intellectually detached from the real world consequences of the rulings, that’s not just because the law values dispassionate analysis; that’s in part because the humans whose rights and dignities are being stripped away are underrepresented in the room where it’s happening.
Other federal courts are trying to find a way to make video technology work during the coronavirus crisis. There are privacy and security concerns with some of the technology, along with the inevitable technical challenges that come when people try to learn new applications. But most courts understand that conducting their proceedings in public is a necessary component of administering that justice.
Only the Supreme Court is trying to hide in the shadows. Yes, the court will get around to hearing arguments on Trump v. Mazars and Trump v. Vance when the justices dial in for that six-day session. Those are important cases about whether Donald Trump’s tax returns and other financial documents can be subpoenaed under the normal operation of law. But the court left California v. Texas, a critical case about the continued constitutionality of the Affordable Care Act, off its emergency docket. That decision sets the stage for the court to hold off ruling the ACA unconstitutional, as it almost certainly will, until after the elections, thus protecting Republicans from getting punished at the polls for their stance against the popular health care law.
Whenever the court hears it, the Obamacare case is a perfect example of why we should turn on the cameras. We should be able to see alleged attempted rapist Brett Kavanaugh misconstrue the ACA as unconstitutional and then play clips of his questions in a campaign attack ad against Senator Susan Collins. Collins, most people will remember, defended Kavanaugh and was a key vote in favor of his confirmation, so when he overturns the health care law, it’ll be her fault as much as anybody’s.
That’s why cameras are still excluded from the Supreme Court. Even though justices are appointed for life, they don’t want the kind of heat that would come from the public seeing what they’re doing. They don’t want their political benefactors to have to answer for their nominations and confirmation votes. They want to operate in darkness because injustice abhors the light.