Cameras at the Supreme Court: A Rhetorical Analysis
McElroy, Lisa T., Brigham Young University Law Review
"Every citizen should know what the law is, how it came into existence, what relation its form bears to its substance, and how it gives to society its fibre and strength and poise of frame.
For most of the Supreme Court's history, a story about the Court has been playing out in the American consciousness. It is not a story about Supreme Court jurisprudence, or ideology, or decision making. It is not a story about personalities or Court composition. No, this story is about the Supreme Court as a priesthood, as a mystical quasi-religious body, as an aristocracy, one removed from and inaccessible to the general American public. Scholars over the decades have referred to the mythology surrounding the Supreme Court,2 usually grounding the conversation in a discussion of legal realism.3
But the Court itself would - and does - purport to tell a tale other than one of majesty, aristocracy, and disengagement from the people. In the Court's narrative of its institutional priorities, it is transparent and accountable, accessible and informative, speaking to the country through its opinions and available to the public in its temple on the Hill. While the institution and the individual Justices acknowledge that the average member of the public knows less than she ideally would about the judicial branch, the Court attributes that ignorance, not to its own practices and procedures, but to forces outside its power and control. According to the people, however, there is one simple and obvious path to learning about the Court, one that other branches of the federal government have modemly adopted: television coverage of the institution's proceedings.
Most of the Justices themselves have consistently and vigorously resisted cameras in the marble palace.4 These Justices have treated the issue as one that should be solely within their discretion, an administrative concern left up to them.5 While several Justices have indicated that they would explore the idea, for example, "after really pretty serious research and study,"6 others have indicated that they emphatically oppose it.7 Even those who might eventually support the idea have asserted that the Court is not yet ready. Famously, while still on the Court, Justice Souter was so disgusted with the idea of cameras in the Court that he publicly stated that death was preferable.9
The Justices deny the need for cameras, arguing that the Court is transparent and accessible even without them. They create an image of educating the public about their work by writing books,10 appearing on television,11 and creating websites.12 They purport to deconstruct the mysticism of the Court with occasional peeks into limited aspects of the institution. But what the Justices allow the public to see is nothing more than a façade; the Justices' outreach barely scratches the surface, allowing the public to see only what the Justices offer and nothing more. In this version of the story, the Justices are Luddites, unfamiliar with modern technologies or societal concerns.
Concerns about public access to the Supreme Court have come up in various contexts, including congressional hearings.13 The issue arises because, aside from the presumed right of Americans to see their government in action, the American public arguably knows far less about the Supreme Court than about other, more open government institutions.14 The Court cannot decide political questions,15 and therefore its decision-making process focuses on different kinds of issues, issues unfamiliar to a public more accustomed to debate about whether to pass a new jobs bill16 or whether a political candidate will prevail in the next election. 17
Through its rituals, its physical presence, its procedures, and its public statements, the Court delivers a message that average Americans are not central to its workings. By creating an atmosphere where the public perceives symbols, the Court perpetuates an Oracle of Delphi-like mythology. …