By: Moses Merakov
As the pandemic rages on, courts around the U.S are resorting to online video conference platforms to proceed with hearings. Although they are sometimes marred with glitches and technical difficulties, a prominent example being a certain Texas lawyer being unable to turn off a cat filter, online video meetings are virtually the next best thing in lieu of meeting in person. Nevertheless, the Supreme Court recently refused to resort to Zoom and instead opted for archaic telephone conferences. Although many law students and SCOTUS fans may feel existential dread for not being able to see Chief Justice Roberts as a wide-eyed kitten, the Supreme Court supposedly has good reason for limiting remote conferences to the telephone.
As a practical matter, cameras are prohibited for use in the Supreme Court by Federal Rule 53. The rule establishes that “[e]xcept as otherwise provided by a statute or [certain] rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” State courts are not bound by this rule and many Federal courts have recently skirted around the rule using authority provided by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)(see Sec. 15002). The CARES act exception, however, only truly applies to criminal proceedings. As a political matter, Retired Supreme Court Justice David Souter famously stated that “[t]he day you see a camera come into [the Supreme Court], it’s going to roll over my dead body.” Justice Souter’s explicit aversion to allowing media broadcast videos of court proceedings is a sentiment shared by many Justices who feel that adding cameras to the courtroom would jeopardize the Court as an institution.
In an age where virtually all information is produced, consumed, and distributed instantaneously, it is difficult to believe that the American public lacks access to videos of Supreme Court proceedings. However, there are distinct reasons for the Supreme Court’s refusal to succumb to the pressures of media in the New Media age. Opponents of in-court cameras generally argue that allowing cameras into the courtroom would (1) magnify public misconception and distort the Supreme Court, (2) lead to virulent political grandstanding, and (3) erode the effectiveness of an institution that has worked fine without it. These arguments and their related suppositions are expanded below.
First, permitting video-taking of Supreme Court proceedings might lead to unneeded public misconception. For example, consider Justice Clarence Thomas’ notorious silence during oral arguments. The public may misconstrue this silence as intellectual inability and/or laziness on the part of Justice Thomas to deliberate judicial issues. In reality, Justice Thomas likely works hours outside the oral argument portion picking apart written briefs, discussing cases with his colleagues in the conference room, working with legal aides, and understanding necessary case precedents. That small issue may be a microcosm of how the public would perceive the Supreme Court in general. Cameras will not follow Justices into the private conference room or their offices, where most of the work is done. Since the cameras would only be present during oral proceedings, the public may assume that the oral argument is the most important process in deciding cases since it is the only segment that will be televised. Holistically, these misconceptions may work to lower the stature and institutional perception of the Supreme Court.
Second, televised oral proceedings, as seen with practically any televised political process, may serve as a catalyst to widespread grandstanding, subsequently distorting the decision-making process. Nightly news programs could constantly air short clips, as they already do, which would misrepresent arguments and cases. Understanding that, lawyers and even Justices are more likely to use the oral argument as a medium from which to spew philosophies or magnificent speeches rather than discuss the complexities of certain statutes. Furthermore, many lawyers will take the opportunity to manipulate public perception in order to gain favor for their side. Plus, aspiring super lawyers and those seeking more business may use the oral argument as a soapbox from which they can attract more clients, instead of helping Supreme Court Justices understand their positions. Thus, cameras would possibly hamper or even suppress proper justice and deliberation from taking place.
Third, the Supreme Court has functioned effectively without the need for cameras for 232 years as of 2021. In looking at this issue, the old adage comes to mind: “If it’s not broken, don’t fix it”. The adoption of cameras into the courtroom does not solve any real problem, rather it is a perceived (by some) improvement. That improvement, however, may come with a host of potential problems.
A fair counter argument in authorizing cameras into the Supreme Court is that cameras would function to make the Court as transparent as possible. Transparency exists in almost all of America’s political institutions. Why should the Court be exempt? After all, cameras are allowed in Congress, arguably the central power in our government. Nevertheless, camera-opponents point out that the argument is a misunderstanding of how the Court already functions. Transcripts and audio recordings of the Court are already publicly distributed. Court Briefs are available online for everyone to read. Proceedings are open to the public and for news agencies to observe. In short, the Supreme Court is considerably transparent. Adding in cameras, opponents generally argue, would do nothing but turn the judicial process into visual entertainment. Why cloud widely available, substantial information with a layer of useless theatrics?
Although these arguments by camera-opponents may be theoretically compelling, and the Supreme Court thereby holds a no-camera principle, our exigent times have shown that their claims may not bear muster in reality. For example, there have been virtually no issues of grandstanding in state and circuit courts that have adopted online video conferencing. It may only be a matter of time before the Supreme Court and our legislative bodies realize that holding telephone-only hearings is needlessly difficult as compared to a video meeting. In light of the times and in respect to the Supreme Court’s desires, the ultimate solution for the Justices would be online video conferences to hear oral arguments with audio-only recordings/livestreams for the rest of the public.