Video cameras are everywhere in the modern world. Security cameras are watching you in many public spaces. Individuals carry cameras around in their phones.
So when the Supreme Court of the United States (or SCOTUS) takes a stand against them, it can seem weird and out-of-touch with the modern world. The (quite understandable) reaction from news media and the general public is confusion. “What do they want to hide?” we ask.
This question makes headlines a few times every year, usually when the news media wants to take advantage of some significant attention SCOTUS is getting to further the media’s agenda. Please note that the news media is absolutely not a disinterested party here. Even though we hope that they bring us valuable “news,” the media’s primary goal is to make money and sell ads. Reading transcripts on air with drawings or even playing the audio recordings SCOTUS makes available of oral arguments is simply not as compelling as video. It doesn’t draw viewers. There’s a lot of interest in SCOTUS, and the media knows that video could allow them to increase viewers and thus profits during high-profile cases.
We should therefore take the media’s continual demands with a “grain of salt.” They’re not just after “transparency” here: they’re after ratings.
But what are the arguments against cameras and video then?
The question has received attention again recently with the appearance of Supreme Court Justice Stephen Breyer on one of the first shows of Stephen Colbert’s new run as the Late Show host. Media reaction has mostly been typical: why the (supposed) “secrecy”? Was Justice Breyer really insinuating that Americans are too ignorant or stupid to understand what’s going on with the Court? Dahlia Lithwick over at Slate is a representative reaction from the media, with the inflammatory title “The Supreme Court Has Nothing to Hide, So Don’t Look.”
The implication here is that SCOTUS is hiding something. But where is the evidence of that secrecy? Most of what it does is public record:
- Before the cases are argued, the briefs and written papers submitted for the case are public record.
- The oral arguments are open the public. (There are extremely rare exceptions dealing with matters of national security and the like.)
- The transcripts of the oral arguments are a matter of public record.
- For many decades, audio recordings of the oral arguments have been made available after a delay. For the past few years, they have been made available every week after oral arguments.
- All the Court’s opinions and dissents are public record.
- The announcements of decisions, including Justices reading summaries of decisions, are open to the public.
Every single word uttered and audible action that transpires in the courtroom of the Supreme Court is available to the public in both transcript and audio forms. And if a member of the public really wants to see the Court in action, they can attend court sessions.
So what precisely is Slate talking about with an article implying there is excessive secrecy about SCOTUS proceedings? Does the public really need an HD television broadcast of Justice Ginsberg’s scowl or Justice Breyer’s grin to satisfy public demand for “transparency”? What is this really about?
As I’ve already implied above, it’s about the news media’s great desire to have something more “marketable” for reporting on high-profile cases. They want to deliver a 10-second sound bite coupled with the video of Justice Scalia’s latest rant. They want to show Justices who may look bored or surprised or whatever for dramatic effect. Those visuals are more likely to get a stronger reaction on the 6-o’clock news or online. Suddenly the “Twitterverse” comes to SCOTUS, where everything you need to know about jurisprudence can be collapsed into a 5-second video clip of a Justice picking his nose.
Why is this bad? Quotations from oral arguments are already taken out of context in reporting, often leading to significant misunderstandings about what the Justices were talking about. Would video really make it worse?
The answer is almost certainly “yes.”
The Misrepresented Importance of Oral Arguments
But before we examine what bad things might happen with video cameras, it’s important to note one of Stephen Breyer’s first arguments on the Colbert show (and one completely ignored by Dahlia Lithwick). Justice Breyer asserted that oral arguments are only about 5% of what goes on in deciding a case.
This may be surprising to most Americans, who have some vision of Perry Mason or Matlock or Jack McCoy (or Denny Crane!) arguing passionately in the courtroom and swaying people’s minds. But that’s really not how appellate courts work, and the Supreme Court is a court for appeals. Why does this make a difference? Appeals courts generally do not involve the introduction of new evidence and at the level of the Supreme Court there is rarely even introduction of new arguments.
The vast majority of information about a case is contained in the written record of previous court proceedings and the various briefs submitted for both sides. This generally consists of hundreds of pages of documents, and it often runs to several thousand pages. It is not an exaggeration to say that thousands of hours are spent before oral arguments on each case by plaintiffs, defendants, and third parties preparing legal arguments and briefs, as well as by Supreme Court Justices and clerks reading these written papers. The oral argument is primarily a formality these days — a place for the Justices to make a few specific queries and get some clarifications on the hundreds or thousands of pages submitted to them. While there may be moments of humor or tension in oral arguments, there is almost no chance of a Perry Mason-like “surprise” revelation that would shift the Justices’ opinions greatly and win them the case.
For an analogy: Imagine there was a famous speaker giving a 2-hour presentation on a complex intellectual subject, and a great deal of thought went into the organization and arguments of the speech. Then, at the end, there was a 5-minute Q&A, to give a very brief chance for a few minor clarifications in the speech. And the questions were only allowed to be asked by experts, who mostly probed tiny technical nuances. Now, imagine that this 5-minute Q&A was the only thing released to the public, and the news media used only this brief Q&A to represent the 2-hour complex speech that preceded it. Do you think it would be appropriate to judge the merits of the 2-hour presentation on this basis?
I think most people would agree that the 5-minute expert Q&A would be unlikely to be representative of the longer presentation. But this is precisely the kind of thing we get by judging SCOTUS cases on the basis of 60 minutes of oral argument by experts concerned with technical details and minor clarifications, when thousands of hours of preparation came beforehand.
That’s what Breyer meant when he said that oral arguments are only about 5% of most cases.
What Happens When We Overemphasize Oral Arguments
Yet the American public tends to focus on only the oral arguments — after all, it’s easier to listen to a few sound bites than to read through thousands of pages of briefs and Supreme Court opinions that often go on for dozens (sometimes even hundreds) of pages. We can’t be bothered to look through the 95% of relevant information released to the public, and then we complain that we don’t have the ability to watch 10-second video clips on the news from the 5% that people do tend to pay some attention to.
Journalists are sometimes the worst offenders here. Jeffrey Toobin’s piece in the New Yorker on Justice Thomas’s silence last year is a primary case of deliberate media distortion. Clarence Thomas has a lot of ideas that many people don’t agree with (and many that I disagree with), but you cannot fault his dedication to his job. If you’ve ever heard any of his interviews, he clearly goes into great detail about the process and the preparation involved in cases. He authors as many majority opinions as any other Justice and frequently adds his own concurrence or dissent to the primary judgment. You may disagree with his ideas, but he is probably one of the most verbose Justices perhaps to ever sit on the Court in terms of his opinion writing, generally showing great intellectual engagement with the legal issues in each case.
Yet Toobin wants to lambaste him solely for his failure to participate in oral arguments. Justice Thomas is on the record about why he doesn’t participate more. The Court today has a more much lively “back-and-forth” where a lawyer can’t speak for more than 15 seconds without being interrupted by one of the Justices. Thomas believes, among other things, that Justices should give a little more time for lawyers to take their few minutes of oral argument to present some longer and more thought-out ideas. We can disagree with this philosophy, but Thomas’s behavior has a reason behind it. (And he does generally pay attention — he is frequently seen by court watchers to be whispering to his neighbor Justices, and they have admitted that Thomas often provides impetus for questions that are later asked by them.)
This kind of disingenuous “hit piece” on a Justice’s behavior is precisely the sort of media nonsense we can look forward to more of if video cameras enter the Court. It surprises me that so many of the New Yorker‘s educated readers would be taken in by Toobin’s distortions, but that only goes to show how confused most of Americans are about the Supreme Court already. We think oral arguments are “where it all happens.” Video cameras will only add to that misrepresentation and draw further attention away from the nuanced legal perspectives that mostly are represented in the written briefs and the written decisions for SCOTUS.
The Lessons to Be Learned from Congress and C-SPAN
We may still want to ask — is the harm really that great? So what if we are putting too much emphasis on one part of the judicial process. So what if some Justices are distorted by their public appearance or facial expressions or whatever. Isn’t there still a significant benefit to being able to see the Justices on camera? Won’t it add to the “transparency” of how justice is done in the United States and thus improve our political process?
I think that answer here is almost certainly not, and we need only look to the model of Congress to see where video broadcasts have influenced our political process in a very negative fashion.
How many people watch long segments of C-SPAN? Very few, except perhaps when something unusual is going on. And if you do watch Congressional broadcasts on C-SPAN, what do you see?
If you watch the video of the full House or Senate chamber when in session, you’d likely see a person speaking to an empty room. That’s what goes on most of the time. Congressional debate on the floor of the House and the Senate is basically dead for 95% of the time Congress is in session. This is mostly due to C-SPAN. Congress members can hang out in their offices and have C-SPAN on in the background, just in case something unexpected happens (which is basically never). They just show up when votes happen.
And the one speaker who is ranting on the floor of the House or Senate is generally just speaking for himself or herself, trying to get an appropriate sound bite to go on the evening news. Congress members rarely have meaningful public debate anymore; most negotiations are carried out behind closed doors before they ever get to the floor. To some extent, closed-door negotiations were alway the case, but when most Congress members were actually present for floor debates, it was more likely for the public to see meaningful confrontations between opposing views, rather than just grandstanding.
This is not a minor concern. It undermines our political process, and it leads to increasingly polarized political parties where reasonable debate is nearly impossible “across the aisle,” since no one is even sitting along the aisle.
The influence of cameras on committee hearings is perhaps even worse, where Congress members take time for “opening statements” to again achieve their sound bites for the news, rarely pausing for any debate among themselves. And when it comes to questioning witnesses, many Congress members refuse to even engage with the speakers, instead going off on whatever rant they think will play best on the news, whether it’s relevant or not.
The goal of C-SPAN was noble. It is good to increase transparency in government, and I would argue that video records of such government sessions should be kept (and perhaps made available as public records after a reasonable length of time). But streaming them live has turned much of government into a circus where politicians strive to get the most attention for themselves, rather than actually engaging in meaningful discussion and debate.
What SCOTUS Does Right
As mentioned above, the Supreme Court makes huge amounts of documents available for each case, ready for anyone who wants to truly dig into the judicial process. The same could be said for Congress, where transcripts of all public sessions and texts of proposed bills and amendments are almost immediately made available on the internet. But how many news media reporters ever bother to read such documents (even though it’s their job to informed about what’s going on in Congress), let alone the general public? It’s easier to watch a video, and a video clip will draw more viewers for news anyway.
The Supreme Court struck a reasonable balance when it started releasing audio recordings of oral arguments on a regular basis. Oral arguments have been recorded for many decades, but there used to be longer delays before they were released publicly. Now these recordings are generally available at the end of each week, which usually prevents them from being used as sound bites on the daily news on the day of argument. (But for important cases which have a longer discussion in the media, they sometimes get turned into short clips.)
By offering transcripts on the same day, the Court ensures accuracy of reporting the actual words spoken, but reporters are forced to explain arguments in their own words or to read sections verbatim if they wish. The focus is thereby placed on the abstract argument and the words, rather than on the personalities of the Justices, their attitudes, or mannerisms. Reporters are more likely to have to search for the real “meat” of an argument in written form, rather than just finding the most inflammatory visual moment on a video clip.
For those who wish to continue analysis of the emotional character of the Justices, the audio recordings provided at the end of each week give an opportunity to do so, after the “media surge” on the day of argument has passed and the potential for short out-of-context sound bites is somewhat lessened.
I think it may actually be a good idea to make video recordings as well, but only for historical interest (as audio recordings were once used). A video clip taken out of context has a great likelihood of skewing public perception and debate right after an argument or ruling, but after a few years, the “narrative” of what the case means has often been set. At this point, a video of the oral arguments for a high-profile case like Citizens United, for example, might be great to have. But it wouldn’t likely change the general interpretation of what that case means to most people years after the event.
Ultimately, the introduction of recording devices will change behavior, particularly if broadcast live or on the same day. Would the Justices “perform” for the cameras and alter their lines of questioning? Probably some of them will. Would the lawyers perhaps try to “score points” with sound bites to skew public perception in their favor like Congress? Almost certainly. The influence will be mostly negative overall.
What Should I Do?
If you are a member of the public who thinks the Supreme Court is too “secret,” well just take some time and learn. As linked above, you can read documents and listen to audio of arguments. If you’re not willing to dive directly into long written opinions, you can see live or same-day reporting (including explanations “in plain English”) on SCOTUSblog and other places. You can listen to audio podcasts providing brief analysis and commentary, as well as excerpts from oral arguments and opinions in the Supreme Court podcast. The information is out there; just because the news media is too lazy to digest it for you without video clips, it doesn’t mean you can’t learn as much as you want about what the Supreme Court does.
And if you’re a media member who keeps ranting about wanting cameras, stop being so dishonest. You mainly want them to make money for your news company. Stop pretending there’s anything “secretive” going on. SCOTUS is a public institution in a public building, and it makes hundreds or thousands of pages of materials available for your examination for every case. Acting like there’s something nefarious going on without video cameras is beyond spreading misinformation: you are basically lying to public to achieve your own commercial gain. STOP IT.
Please — let’s just not take away one of the few places in political life where reasoned intellectual debate can still occur without people pandering to cameras.