Monday, February 18, 2013

SCOTUS and cameras

Adam Liptak of the New York Times has a story today about the United States Supreme Court's reluctance to allow cameras in their courtroom. First, on a side note, how do I get Adam Liptak's job, getting paid to cover SCOTUS? I could go for that.

But on to the substance. Before Justices Sotomayor and Kagan were confirmed to the Court, they both expressed approval of the concept of putting cameras in the Supreme Court. Open government is good, transparency is good, access to the Court is good kind of approval. Now, though, both Justices are pulling back, suggesting that cameras in the Supreme Court would be a bad idea. I hate to criticize members of the highest court in the land, but their arguments for their new position are specious. At best.

The argument against cameras in the Supreme Court goes something like this. Most of the arguments are way over the heads of most observers, so there would be no point in making them available to the general public. Having cameras subjects the arguments to the possibility of being reduced to soundbites. And some Justices and lawyers might act differently if there were cameras in the courtroom, a difference that would not be beneficial to the pursuit of justice.

Now that I've repeated these arguments, I think calling them specious was too kind. These arguments are insulting, disingenuous, and beyond illogical.

It is insulting to suggest that most arguments are far beyond the capacity of most Americans to follow, so there's no point in letting them try. It's also disingenuous because all of the information about the arguments are already readily available to the public, if they know where to look and have the interest. Any brief written to the Supreme Court is easily available on the web. Full transcripts of the arguments are made available on the Court's own website, usually early afternoon on the very day the cases were argued. The public already  has access to the Court's materials and people already follow the cases. And, of course, the decisions are also available to anyone on the web.

Reporters routinely cover the Court's arguments and decisions. (For big news agencies, there is a Court beat, worked by people like Adam Liptak.) News readers and watchers follow the stories, comment on web forums, talk about the decisions with friends, write blog posts, and engage in Facebook dialogues. The substance of the arguments are already out there, they're just weighted toward people who are better readers as opposed to those who learn better by hearing.

So a) the arguments are already out there for all those stupid Americans to try to muddle through. But b) an awful lot of Americans aren't stupid and really can follow the arguments, even if they don't have J.D.s from Harvard. And here's the real argument, even if they don't, even if most Americans are dumb as stumps and really aren't capable of understanding what those brilliant men and women in the black robes are saying, that is no basis for one branch of government to keep the public in the dark. There's no IQ test required before anyone can get access to attending Supreme Court arguments in person. Random Joe Schmos and Jane Does regularly attend, even if their feeble minds aren't up to the task of following along. Access to government isn't limited to the intellectual elites. Imagine if C-Span decided that it wouldn't cover Congressional hearings or debates that delved too deeply into technical issues beyond the comprehension of most Americans.

Similarly, the soundbite argument falls apart quickly. Because the arguments are already covered by the press and the transcripts are already readily available, the arguments are already at risk of being reduced to soundbites. (Like how everyone thinks of the Citizens United case standing for the proposition that "Corporations are people!" even though the majority opinion said no such thing.) What happens now is that television news covers arguments by showing one of those court drawings of the relevant Justice and having the reporter read the direct quote the reporter thinks is significant. As it stands now, anyone who wants to know the greater context can track down the transcript and read the whole argument. So how is it worse to have the intrepid news reader track down the video  of the argument and watch it instead of read it? Those of us in the court business know how different a cold transcript can feel from the actual proceedings, so wouldn't the public get an even better sense of the true context of those soundbites if they could hear the tone of voice and see the body language? I don't see how anyone can honestly claim the answer is no.

Finally, the idea that justices and lawyers would pander to the cameras is straight out of 1995. Yes, Judge Ito pandered to the publicity and yes, the OJ Simpson trial was a media circus of epic proportions. But let me posit a few theories. One, the major problem with Judge Ito wasn't that there were cameras in the courtroom, but that he wasn't a good judge. And that trial was a perfect storm of DNA evidence coming to the forefront, cameras in courtrooms for the FIRST time, in a case that was way too long and complicated, and, most importantly of all, involving one of the highest-profile defendants the public had seen in decades. We probably shouldn't be basing ideas on cameras in the courtroom on one disastrous trial from nearly two decades ago.

Cameras are a routine matter now in courtrooms throughout the country. This hasn't been a bad thing. It's become so expected in so many jurisdictions, the people working in the courts don't even notice anymore. Just as it's hard for us to remember what it was really like when we couldn't get a hold of our friends when they weren't at home, we now just accept that we live in the YouTube age when cameras are everywhere. Plus, there's the basic fact that court proceedings are already recorded for posterity. That's the whole idea of the phrase "for the record." We need everything to be noted, transcribed just as they happened, so that other courts can know exactly what happened and review the proceedings for error. Video cameras are just the latest technological advance for recording things. It's the natural progression of things. So, yeah, I think the court system's integrity will survive being recorded using the technology that's ubiquitous. And I think it's pretty futile to fight it for much longer.

Furthermore, what does it say about our Supreme Court Justices if they, themselves, think that they would behave like clowns if they were suddenly put on camera? There are only 9 Supreme Court slots, whereas there are hundreds (thousands, even?) of lawyers and judges throughout the land who would be well-qualified for those slots. I'd suggest that any Justice who can't resist pandering to a camera in a way that s/he could resist pandering when it's only to several hundred people in the gallery and a written transcript that will be available forever doesn't deserve to hold one of those select 9 seats. How little do these Justices think of themselves and their colleagues?

If I argued before the Supreme Court and lost to arguments as lacking in intellectual rigor as these arguments, I would be ranting for the rest of my life about it. I'm incredibly disappointed in both Sotomayor and Kagan for expressing these illogical arguments. I don't understand what the real reluctance is among the Justices. It seems a little silly that in 2013 they are still so stuck in these dinosaur views that they suck in the new Justices as soon as they take their seats on the bench. It makes me think there is some super secret objection that they just aren't willing to state out loud. But if the highest court in the land fights so hard against allowing the public to see what it does, they really ought to be required to give an explanation that doesn't fall apart with the slightest analysis.

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