This week, the news cycles has been consumed by the Supreme Court's oral arguments on two closely-watched legal battles in recent history, but unlike virtually every other news story on the planet these days, there were no images or videos because cameras are not allowed in Supreme Court proceedings. Here's why.
The reason why cameras are prohibited in the courtroom goes back to 1946 when the court put into place Federal Rule 53. It states:
Except as otherwise provided by a statute or these 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.
In 1972, the rule was expanded to include television cameras.
Then, in 1999, Iowa Sen. Chuck Grassley introduced legislation that would have allowed cameras into Supreme Court proceedings. As a response, the Court began to release audio of oral arguments, but only after arguments concluded.
To state the obvious, the Supreme Court last year makes history on a regular basis, whether by ending racial segregation in schools or legalizing both interracial marriage and abortion. In 2000, the Supreme Court essentially picked the President. The Constitution gives a tremendous amount of power to grant a group of nine judges who aren't elected and are given lifetime appointments. Adding a little more transparency into the mix certainly wouldn't hurt anyone.
In Their Own Words
It is Supreme Court Justices themselves who have been the most vocal opponents of allowing cameras into their courtroom. However, there are several members of the current Court who have expressed either a desire to allow cameras in the proceedings or at least some interest in entertaining the idea. C-SPAN has compiled a conclusive list of instances where justices have spoken either for or against cameras in the courtroom. Going by their past statements, the Court is currently split 4-3 towards not allowing cameras, but those two undecided votes could swing the majority in favor of allowing them.
Chief Justice John Roberts; July, 2006, speaking against cameras:
"There's a concern [among justices] about the impact of television on the functioning of the institution. We're going to be very careful before we do anything that might have an adverse impact."
Justice Antonin Scalia; April, 2005, speaking against because he doesn't trust the media:
"I wouldn't mind having the proceedings of the court, not just audioed, but televised, if I thought it would only go out on a channel that everyone would watch gavel to gavel. But if you send it out on C-SPAN, what will happen is for every one person who sees it on C-SPAN gavel to gavel so they can really understand what the court is about, what the whole process is, 10,000 will see 15-second takeouts on the network news, which, I guarantee you, will be uncharacteristic of what the court does. So I have come to the conclusion that it will misinform the public rather than inform the public to have our proceedings televised."
Justice Anthony Kennedy; March 2007, speaking against because he doesn't trust his colleagues:
"... But I don't think it's in the best interest of our institution ... Our dynamic works. The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite. Please don't introduce that insidious dynamic into what is now a collegial court. Our court works...We teach, by having no cameras, that we are different. We are judged by what we write. We are judged over a much longer term. We're not judged by what we say. But, all in all, I think it would destroy a dynamic that is now really quite a splendid one and I don't think we should take that chance."
Justice Clarence Thomas; April 2006, speaking against:
"It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don't think for the better."
Justice Stephen Breyer; December 2005, without an opinion:
"I think there are good reasons for it and good reasons against it. ... I hope eventually the answer will become clear, that either those who are concerned about the negative effects are shown wrong, or they're shown right. But at the moment I think it's quite uncertain what the answer is."
Justice Samuel Alito; January 2006, without an opinion but leaning towards cameras:
"I had the opportunity to deal with this issue actually in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it ... The issue is a little different in the Supreme Court. It would be presumptuous for me to talk about it right now ... I will keep an open mind despite the decision I took in the third circuit."
Justice Ruth Bader Ginsburg; November 1993, speaking in favor:
"I don't see any problem with having proceedings televised. I think it would be good for the public."
Justice Sonia Sotomayor; July 2009, speaking in favor:
"I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered. "
Justice Elena Kagan; August 2011, speaking in favor:
"I do think it would be a good idea ... If everybody could see this, it would make people feel so good about this branch of government and how it's operating ... it's such a shame actually that only 200 people a day can get to see it and then a bunch of other people can read about it. Because reading about it is not the same experience as actually seeing..."
Many arguments against recording Supreme Court proceedings, including one published Wednesday in USA Today, revolve around the idea that, were they televised, these proceedings would turn into some Congressional hearing with each justice fighting to deliver the snappiest soundbite. However, they are neither cable news pundits, nor are they politicians running for re-election and looking to generate publicity, so it's not like they have the same incentives to play for the cameras. Or, rather, they wouldn't have any more incentives than they currently do.