I Want My Court TV

I'm trying to picture Ruth Bader Ginsburg turning into Judge Judy. I just don't think it's going to happen, Sen. Amy Klobuchar said at a Senate committee hearing last week.

As much of a stretch that scenario may be, the concern that Ginsburg will start acting more like a daytime television judge presiding over the dregs of small claims court than a U.S. Supreme Court justice is one of the many ways closing oral arguments to televised proceedings is rationalized.

Many justices who have served on the high court have said that cameras will change what questions they ask during oral arguments, how lawyers respond, the public's view of the court because arguments will turn into soundbites. Justice Byron White said in 1993 that he prized his anonymity and just wanted to bein public without being recognized.

These issues were discussed at a Dec. 6 Senate Judiciary Committee hearing about legislation from Sen. Dick Durbin, an Illinois Democrat, and Sen. Chuck Grassley, an Iowa Republican, called the Cameras in the Courtroom Act. The bill would make a failure to televise oral arguments a violation of due process rights, unless a majority of justices vote to keep a case off the air.

It is unclear if such a bill would be constitutional, seeing as the Supreme Court is an equal branch of government, but some current and former justices have stauchly opposed opening up the courts to gavel-to-gavel, C-SPAN-style coverage.

Of the current nine justices, the court's four conservatives, Justice Stephen Breyer and Justice Anthony M. Kennedy seem most opposed to court cameras, however unobtrusive they can be. Justice Ruth Bader Ginsburg would support televised proceedings.

Justices Sonia Sotomayor said she had positive experiences with courtroom cameras during her time on the Second Circuit Court of Appeals. Justice Elena Kagan said in August that it is such a shame that a few hundred people could watch proceedings.

Lawmakers have been pushing televised oral arguments for decades, but proponents of cameras in the court were bolstered by the justice's decision to hear arguments about the health care reform law.

Sen. Chuck Grassley has called the constitutional questions about the Affordable Care Act momentous. House Minority Leader Nancy Pelosi said that health care reform has sparked a historic debate. Brian P. Lamb, the CEO of C-SPAN, wrote in a letter to the justices that the case will affect every American's life, our economy and will certainly be an issue in the upcoming campaign.

They are certaintly correct, but if the justices were able to rebuff calls for airing arguments in Bush v. Gore, the case that had actually determined the outcome of a presidential election, expectations should be low for televising the health care law challenge.

Public Access

To get a better look at the innerworkings of the top court in the third branch of government, one must actually be in Washington, D.C., and attend a case that won't bring throngs of court watchers to the 250-seat public gallery.

On a case like the Affordable Care Act challenge, you're going to see people lining up for a day or two before outside the court room vying for those seats, said Marjorie Cohn, a professor at the Thomas Jefferson School of Law and co-author of Cameras in the Courtroom: Television and the Pursuit of Justice.

For those outside the Washington metropolitan area unwilling to travel, a transcript of oral arguments are released the day lthe justices hear the case. The transcripts, many of which can run about 70 pages, are not an easy read; justices during oral arguments ask questions and engage in conversation with an attorney.

Audio recordings of arguments are released later in the week, usually during the Friday news dump. In today's news environment, that delay decreases the value of audio recordings, which had been released regularly since the 2000 Bush v. Gore decision.

In the decades since cameras and television has become commonplace in America, there has been only two pilot programs on the issue--one completed in 1994 and one currently ongoing.

The first pilot program was launched in 1991. Media organizations had to apply to cover civil trials in six federal district courts and two appellate courts.

Overall, the Federal Judicial Center concluded in a 1994 report, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program.

The report also said judges and attorneys reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice.

That is a sentiment shared by Iowa Supreme Court Chief Justice Mark Cady, who told senators that he and his colleagues had discussed the same fears and concerns about cameras recording arguments as the Supreme Court justices.

What we have found out is that we don't even see the cameras, Cady said. We don't even remember they're in the court room.

Being Supreme

The justices opposed to the idea of televise cases contend that the Supreme Court is a unique institution different from the executive or legislative branches; they get lifetime appointments and strive to maintain independence from political influence.

They control their case load and have discretion regarding recusal matters. And if you are a chief justice like William Rehnquist, you can add gold stripes to your black robe.

The Supreme Court has historicaly been very isolated, very insular, Cohn, the Thomas Jefferson School of Law professor, told the International Business Times. It's a small group of people who serve life terms and who have tremendous power and who can rule on... laws that Congress pass, who can rule on the boundaries of executive power.

This view of the Supreme Court becomes the barrier to increasing public access to cases.

Maureen Mahoney, of counsel to Latham & Watkins in its Supreme Court practice, at last week's hearing advised senators against forcing the issue legislatively.

Sen. Richard Blumenthal, a Democrat who had previously argued before the Supreme Court as Connecticut attorney general, noted that the court is already open to the public via transcript and audio recordings. He said a bill would just increase the availability of proceedings already open to the public without altering them.

That begs the question, Mahoney said, who's supposed to decide whether it changes the nature of the proceeding?