Bruce Peabody is a professor of political science at Fairleigh
Dickinson University and the editor of The Politics of Judicial Independence (Johns Hopkins University Press, 2010).
WHEN AMERICANS THINK about power, they tend to think about
accountability: how we keep political institutions responsible to the citizenry, and how we keep people informed about government. Televising the
Supreme Court would help the American public watch one of our most
important governing bodies, while also reminding the justices that their job
is to support the rule of law along with governance of, by and for the people.
In practice, our highest court has already conceded much of this argument. To further transparency and greater understanding of its work, the court allows a small portion of the public to
attend open sessions in which it conducts oral argument on pending cases and makes announcements on new rulings. The court also releases audio recordings of cases at the end of every week.
So why shouldn’t the court follow the lead of Congress, which has allowed “gavel-to-gavel”
TV coverage for more than two decades? While a handful of tourists, lobbyists and lawyers can
see the court’s proceedings live and in person, we should expand this access to the millions of taxpayers who do not have the time or resources to travel to the Supreme Court building directly.
Two central arguments against “Supreme Court TV” are that the justices of the court don’t
want it, and that television cameras would somehow undermine how the court does its job. But
members of the Supreme Court are not unified in their opposition. Justices Sonia Sotomayor and
Elena Kagan have openly supported TV cameras, and Justice Stephen Breyer has argued that they
would provide a “terrific education” and are “almost inevitable.” Even more to the point, Congress
has extensive power to regulate the court, regardless of what the justices want. Congress tells the
court how to form a quorum, how many clerks it has and how much judges get paid, even though
members of the court have consistently criticized these salaries as being too low.
But would television change how the Supreme Court conducts its work, especially because
the justices would now play to their new national audience? Maybe. But the court already has an
audience: the lawyers who argue before them, the specialized court watchers who attend arguments in person and the other political and legal elites with whom the justices regularly interact.
It would be good for democracy if the court gave a little more attention not just to these powerful players, but to the rest of the nation as well. C
DO WE REALLY want the nation’s highest court to go viral? I don’t always
agree with Supreme Court decisions, but on this issue the justices are right:
Keep the cameras out. Television (and the resulting You Tube clips) would
not be good either for the court or for the public’s understanding of how
the court functions within our constitutional republic.
We expect judges to be as impartial as humanly possible. Even their
special mode of dress reminds them of this requirement of their office: The
black robes conceal the body, expressing the aspiration to be governed by reason alone, free of
bias and vanity. Nothing should be done—and certainly nothing should be imposed on the jus-
tices by Congress—that might interfere with the unique atmosphere of their workplace. The judi-
cial temperament should be insulated from popular pressure and the distractions of celebrity.
Those calling for televised hearings seek a more transparent and democratically accessible
Supreme Court. However, it is extremely misleading to suggest that televising oral arguments
would achieve this. What would be shown would be a very small, and unrepresentative, slice of
the court’s day-to-day work. (The calendar for the entire yearlong term shows oral argument
taking up 78 hours.) The essential work of the court consists of selecting cases to be heard,
reading briefs, deciding cases and writing opinions—all profoundly untelegenic activities.
Reading, thinking and writing cannot be made into the stuff of spectacle.
By focusing on the oral-argument phase of the proceedings, the media will distort the picture. The final product of the Supreme Court is the most transparent of any branch of government. The Supreme Court does not just issue verdicts (as juries do); rather, it issues opinions
wherein the justices explain their reasoning. Within minutes of the announcement of opinions,
full texts are available to the public on the Supreme Court’s website ( www.supremecourtus.gov).
The court is already an open book. Since its work is fundamentally textual in nature, the
only adequate way to gain access to it is by following the justices in the difficult task of legal
interpretation. We should respect the written character of the court’s communication with the
public. Much as we might hope for a different, and less demanding, form of access, that hope is
delusive. The very nature of the Supreme Court’s enterprise is at odds with the visual medium
of television. C
Diana Schaub is the Garwood Visiting Professor at Princeton University and a professor of political science at Loyola University Maryland.
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