June 21st, 2013 by and tagged affirmative action, bill, cameras in the courtroom, gay marriage, Justice Kagan, Justice Scalia, Justice Sotomayor, oral argument, Senate, Senator Durbin, Senator Grassley, Supreme Court, video, video clips, videography, Voting Rights Act
Senators Dick Durbin (D-Ill) and Chuck Grassley (R-Iowa) introduced legislation Thursday that would require the Supreme Court to televise proceedings, just days before the high court is expected to hand down a series of major rulings.
The Supreme Court has just over a week to publish decisions on gay marriage, affirmative action, and the Voting Rights Act, some of the most contentiously litigated and publicly discussed issues of the day.
The Cameras in the Courtroom Act of 2013 would require the Supreme Court to offer live television access of proceedings unless a majority of Justices agree that doing so would violate the due process rights of a party before the Court. Currently, a written transcript of the proceedings is published each day the Court is session, and audio is posted at the end of the week.
In a letter to Chief Justice John Roberts earlier this week, Senator Durbin argued the importance of increased transparency:
“The Court’s opinions in these cases will impact millions of individuals and the collective fabric of American life. Accordingly, it is not unreasonable for the American people to have an opportunity to hear firsthand the arguments and opinions that will shape their society for years to come.”
It’s not the first time someone has tried to pull back the curtain on the Supreme Court’s decision-making process. Almost two decades ago, a question about the possibility of cameras in the courtroom led Justice David Souter to famously remark, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Opposition to cameras in the Court is centrally grounded in concerns that their presence will have a warping effect, either on the manner in which Justices consider cases, or the way the public perceives the Court.
Justice Antonin Scalia has openly worried that edited video clips from the Supreme Court would paint an inaccurate picture of what actually happens in chambers. “For every one person who sees it on C-SPAN gavel to gavel so they can really understand what the court is about . . . 10,000 will see 15-second takeouts on the network news, which, I guarantee you, will be uncharacteristic of what the court does,” Scalia said in 2005.
NPPA General Counsel Mickey Osterreicher responded to such critiques in an article published in the Reynolds Courts & Media Law Journal. “The federal judiciary must be mindful of its high power not to erect its own prejudices into judicial rules, Osterreicher observed, “Society can ill afford to let the misplaced and speculative objections of jurists antagonistic to the electronic press substantially undermine a fundamental constitutional right by lens-capping the very tools of the profession and eviscerating the very means by which most Americans receive their news.”
Not every Justice agrees that the Supreme Court is no place for cameras. Justices Kagan and Sotomayor have made statements reflecting their support for the video recording of court proceedings, and in 2008 Chief Justice Roberts told NPPA Attorney Alicia Calzada that he was not opposed to the idea. Regardless, the Supreme Court has not signaled any meaningful change in its official position.
The Senate Judiciary Committee has offered bills similar to Durbin and Grassley’s the past two Congresses; both died on the Senate floor.
Lawmakers’ inability to move on this issue is hardly surprising given the recent epidemic of inaction on Capitol Hill, and concerns over potential separation of powers conflicts may be tempering enthusiasm among some in Congress.
But cameras in the Supreme Court isn’t an issue that’s going away, nor should it be.
“The ability of the public to view actual courtroom trials should not be trivialized,” Osterreicher contends. “That right, advanced by cameras in the courtroom, is the right of the people to monitor the official functions of their government. Nothing is more fundamental to the democratic system of governance than this right of the people to know how their government is functioning on their behalf.”
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