The Weakness of the Case for Cameras in the United States Supreme Court
46 Pages Posted: 27 May 2015 Last revised: 22 Jul 2015
Date Written: January 5, 2015
Many people regard it as obvious that Supreme Court proceedings should be open to video cameras, and should be broadcast live on television and online. After all, the activities of Congress and the President are routinely publicized in this way, as are the proceedings of many state and lower federal courts. The benefits of such broadcasting seem manifest, and by stubbornly resisting this trend the Supreme Court apparently runs afoul of the basic demands of democratic transparency. In this Article, I show that these familiar positions are very difficult to sustain. On close inspection, all of the common arguments for cameras in the Supreme Court fail to persuade, either because they rest on speculative empirical premises, or else because they extrapolate unconvincingly from generic propositions about government openness. Not only is video not required by our commitment to transparency, I argue, but there are no reasonable grounds for confidence that it would promote any of the goods claimed in its name, including public understanding, accountability, and legitimacy. In fact, there are affirmative reasons to doubt that video, at least as ordinarily experienced in our present social context, would improve the public’s understanding of the Court and its process. In short, the case for cameras in the Supreme Court turns out to be surprisingly weak. My analysis suggests that, at least for now, Congress should defer to the Court’s prudential judgment on this issue, and that the Justices are right to regard video skeptically. Nevertheless, I conclude by explaining why the Court may eventually find itself with compelling reasons to reverse that judgment, and to embrace cameras.
Keywords: Supreme Court, oral argument, cameras, video, television, broadcasting, openness, transparency
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