True Transparency Is Overdue

By Webster, Peter D. | Judicature, March/April 2012 | Go to article overview
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True Transparency Is Overdue


Webster, Peter D., Judicature


As I sit to draft this Report, the United States Supreme Court has just completed its third day of arguments in the Patient Protection and Affordable Care Act Cases, which the media have described as cases that "will be among the most important in American history"; "will define the legacies of a president and a chief justice"; and "could alter the allocation of power within the American government." It has been nearly 50 years since the Court spent so much time hearing oral arguments in a single case or series of cases yet, sadly, very few will actually have the opportunity to watch the arguments because the Court does not permit them to be televised or broadcast on the internet, not even on tape.

There will likewise be no live audio broadcast. Blogging, twitter and other means of real-time communication are also prohibited from within the Court. Apparently in recognition of the tremendous importance of these cases, the Court has agreed to bend its usual rules slightly to permit same-day [but not live) audio broadcasts and transcripts.

In my first President's Report, I promised to use the presidency as a "bully pulpit." Frankly, I find the Court's refusal to permit live audio and video broadcasts of the arguments in these cases very difficult to comprehend. 1 candidly concede that this is my opinion only, and that, while AJS has in the past urged the federal courts to be more receptive to live broadcasts (see "Cameras in our federal courts - the time has come," 93 Judicature 136 (201O)J, its official position has been more subdued.

The Court has consistently refused even to consider live broadcasts regardless of the importance to Americans of the issues being heard. Its stance was the same in 2000, when it refused to permit broadcasts of the arguments in Bush v. Gore. The Court remains steadfast in its refusal notwithstanding the monumental importance of the issues; that it is inconceivable the Court would tolerate any other governmental body denying access to public proceedings; that Congress has repeatedly threatened to mandate live broadcasts, possibly resulting in a constitutional showdown; and that all 50 states permit cameras and microphones in their courtrooms in at least some circumstances.

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