If you are a political junkie, work the night shift, or otherwise found the time to watch last week’s Supreme Court confirmation hearings, you were treated to a proceeding that had it all: political grandstanding, talking points, comedy, and very little substantive discussion of actual legal issues. What was not missing, however, was the perennial question about video cameras in the court room. If Kagan is approved by the Senate, we may be one step closer to actually seeing what goes on at argument in the Supreme Court without having to fly to D.C.

Interestingly, what seems like a somewhat innocuous issue has actually generated a lot of passion within the ranks of the Justices. When asked whether he would allow televising arguments, Justice David Souter famously responded: “I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Granted, Souter is no longer on the bench, but it appears that his sentiments are shared in principle (if not necessarily in veracity) by several members of the current Court. In fact, the rough breakdown at present is as follows: Thomas, Scalia, and Kennedy all seem to oppose the idea. Ginsburg and Breyer clearly think it is a mixed bag, but are willing to keep cameras out so long as one Justice opposes it. Alito and Roberts have not taken a clear stance. Meanwhile, Sotomayor and nominee Kagan are in favor of televising the proceedings. In other words, it appears to be a 3-2-2-2 split at the moment.

But what’s the big deal? Why is the idea of C-SPAN setting up shop in the back corner of the Supreme Court not a given, just like it is for legislative sessions and presidential addresses? Justice Sotamayor has stated that when cameras were in her courtrooms prior to becoming a Justice, she had a positive experience. Nominee Kagan thinks that C-SPANing the Court would show the public how excellent an institution it is. So, if at least one Justice has had a positive experience, and the Court has nothing to hide, what is the problem?

Well, the basic argument offered by the opposed justices is that televising the proceeding will fundamentally alter the way the institution works, and will actually serve to make Americans less educated about the law. The idea is that cameras will create a temptation for lawyers — and possibly even Justices — to play to the public and not to the Court. To make matters worse, media coverage will surely devolve into sound bites rather than comprehensive coverage of the proceedings, leaving Americans worse off in their understanding of the Court, as the Court officially speaks through its decisions and not through oral argument. In other words, some of the Justices are worried about the possible politicization and O.J.-ization of the Supreme Court: two things that no one really wants to see happen.

So, if Kagan is approved, where does this leave us? In all reality, it still leaves video cameras at least a good two decades away from entering an appearance at SCOTUS. Until the opposed Justices retire (or run for President?) nothing is going to change. While it might be a disappointment to law students and court junkies, for the foreseeable future the line outside the Supreme Court building will still be the only way to see the action at argument.

Sean Wlodarczyk

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One Response to Will Kagan Move the Court Closer to Cameras?

  1. Guest says:

    The justices opposed to cameras in the courtroom have a point – the streaming video of Congressional sessions has caused some of our elected officials in Washington to make over-the-top speeches on the floor about things like the dangers of smoking lettuce as compared to smoking tobacco (not kidding – Rep. Steve Buyer of Indiana gave a floor speech on the health risks of lettuce-smoking.)