If you want to attend a Supreme Court hearing right now, the experience is not unlike trying to get into a taping of Saturday Night Live. Except, if you can't get in, there's zero chance to see the show, because the Supreme Court is one of the few places in the U.S. where cameras are still forbidden. In a renewed push bring the institution into the 21st century, a group called Coalition for Court Transparency is airing TV ads urging the nine justices to allow cameras to televise oral arguments in a move that will increase transparency and do away with the court's old-fashioned vestiges of secrecy.
Public interest in many Supreme Court decisions — like the 2012 ruling that Obamacare is constitutional, or the 2013 decision overturning the Defense of Marriage Act — often wildly outnumbers the 400 open seats in the courtroom. Patrons have to wait in line outside and be ushered in, but sometimes those lines start days before, with tents erupting outside the building, making it look more like makeshift Coachella than the nation's highest court. Yet some on the court think the situation is fine as it is. Justice Antonin Scalia somehow believes that allowing cameras inside the court would "miseducate Americans."
The Coalition for Court Transparency, which includes media organizations and legal groups, argues that the "outdated decision" to ban cameras and recording equipment is working to erode public confidence in the courts. In a new ad, which will air 300 times over the next few weeks, the group says, “The Supreme Court’s decisions impact the lives of Americans everywhere. But only a privileged few get to witness history and see justice in action."
Recording equipment in some capacity is allowed inside all 50 state supreme courts, and cameras have been placed inside 14 federal courts as part of a Judicial Conference of the United States pilot program, which studies the effect of broadcasting federal court proceedings, although it is limited to civil cases.
When the landmark ruling on the constitutionality of the Affordable Care Act was decided in 2012, traffic to SCOTUS Blog, which covers the court, surged into the millions. Without access to a live transmission of the ruling, would-be viewers had to rely on blogs and whichever TV station was first to report on the decision quick enough. And even then, it was probably wrong.
For the past 15 years, Congress has debated bills intended to encourage the justices to let cameras inside the courts. C-SPAN has also said that if a bill passed, the station would broadcast all of the Supreme Court's oral arguments. Cameras in the courtroom have been prohibited since 1946, following the implementation of Federal Rule 53, which states that no photos or broadcasting is allowed. That was expanded to include TV cameras in 1972.
Justices say that cameras inside the courtroom would undermine the ruling, or that comments would be taken out of context. According to Justice Scalia, viewers watching a television broadcast of Supreme Court proceedings one day in the future would realize:
“We’re not usually contemplating our navel, ‘should there be a right to this or that? Should there be a right to abortion? Should there be a right to homosex—‘ that’s not usually what we’re doing. We’re usually dealing with the internal revenue code, with ERISA, with patent law, with all sorts of dull stuff that only a lawyer could understand and perhaps get interested in. If the American people saw all of that, they would be educated, but they wouldn’t see all of that.”
C-SPAN, which would undoubtedly benefit from the ability to broadcast historic Supreme Court arguments, has compiled a YouTube channel featuring the Justices giving their own opinions on cameras. Former Justice David Souter famously said that cameras would be allowed in the court "over my dead body."
“When you think about the most widely followed cases of the last year, litigants hailed from California (Hollingsworth v. Perry), Oklahoma (Hobby Lobby v. Sebelius) and Alabama (Shelby Co. v. Holder),” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, a Coalition member.
“The idea that these individuals, and other concerned parties from across the country, would have to fly to Washington, find a hotel, and stand in line for hours – or pay someone to do so – just to see justice in action shows how far the Court needs to come to get more in step with technology and transparency today.”
If cameras are allowed inside the court, a rite of passage for some young Washington journalists would unfortunately become obsolete: the running of the interns. And it would likely put the last of the courtroom artists out of business.