Academic journal article Brigham Young University Law Review

The Monster in the Courtroom

Academic journal article Brigham Young University Law Review

The Monster in the Courtroom

Article excerpt

"There are very few monsters who warrant the fear we have of them.

It is well known that Supreme Court Justices are not fans of cameras - specifically, video cameras.2 Despite continued pressure from the press,3 Congress,4 and the public5 to allow cameras into oral arguments, the Justices have steadfastly refused. They have, moreover, shown no inkling of reconsidering their position any time soon. They have yet to deem any case to be of sufficient importance or public interest to allow even a single camera in the courtroom while they are in session.6

Many observers have argued in favor of televising oral arguments as a matter of public policy, and these important arguments merit the Justices' attention. The public policy debate centers on the virtues of openness in the work of courts in general and the work of the Supreme Court in particular.7 Arguments for cameras as a means to increased transparency of judicial work, however, tend to gloss over a significant point about the Court - it is not secretive. The Court allows several avenues of public access to its process, making it a relatively open and transparent government body. This is particularly true with oral arguments.8 Chief Justice John Roberts was correct when he told the Fourth Circuit Judicial Conference recently that "[everything we do that has an impact is done in public."9 The openness of the Court's arguments starts with the presence of the press and hundreds of members of the public in the audience. For those who cannot be physically present, transcripts of the arguments are released daily,10 and audio recordings are released weekly.11 There is now even live blogging of opinion announcements through the website "SCOTUSblog."12 These various means of access make clear that this is not simply an issue of transparency versus secrecy. Oral arguments at the Supreme Court are, in all fairness, open and public events.

This makes it all the more curious why the Justices have drawn the line at cameras. Yet draw the line they have. They have drawn it firmly (not even for purely archival purposes),13 and they have drawn it forcefully (Justice David Souter famously told the House Appropriations Committee that "the day you see a camera come into our courtroom, it's going to roll over my dead body"14). The opposition to video cameras also crosses ideological lines.15

Time has shown, moreover, that this is not simply a matter of waiting out older, technologically fearful Justices and replacing them with their younger, tech-sawy counterparts. Some of the older16 as well as some of the younger17 Justices have vigorously opposed allowing cameras in the courtroom. Notably, Supreme Court nominees almost always speak in favor of cameras in the courtroom during their confirmation hearings, yet once on the Court they become opposed.18 The newest member of the Court, Justice Elena Kagan, appears to be following this trend. At her confirmation hearings, she said that she thought "it would be a terrific thing to have cameras in the courtroom,"19 but just over two years later she was not so sure, confessing she had "a few worries" about the potential presence of cameras.20

Nor has internal opposition to filming Court sessions softened as video equipment has become less intrusive. Today, the use of video technology causes no more light or noise and takes up no more space than other tools.21 Almost fifty years ago Justice Harlan predicted "the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process."22 Surely the day Justice Harlan predicted has arrived; tiny and quiet cameras are commonplace.23 No one has argued for years that the cameras would be too loud or too big and thus a disruption.24

All of this raises the central question - why the fear of video cameras? After allowing so much access, why not add this additional avenue of communication with the public? …

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