Next week, the U.S. Supreme Court will hear oral arguments in the Conestoga and Hobby Lobby cases, the high-profile challenges to the Obamacare contraception mandate. Many ordinary citizens wish they could tune in to the arguments on TV, or at least catch clips on the
Daily Show nightly news. After all, how else can Americans access this valuable information that could change their lives forever? I mean, without an Upworthy piece or a Buzzfeed listicle?
Of course, serious folks make serious arguments championing televised coverage of Supreme Court arguments. UC Irvine School of Law Dean Erwin Chemerinsky wrote an opinion piece this week, arguing that “[t]here is no excuse for keeping cameras out of the Supreme Court.” (Apparently, Chemerinsky wants cameras in and Justice Ginsburg out, for those keeping track of Chemerinsky’s wish list.) Earlier this month, the Coalition for Court Transparency, a group of press organizations and pro-transparency NGOs, sent a letter to Chief Justice Roberts, urging the Court to permit the video recording and broadcast of its courtroom.
So, what are opponents of cameras at One First Street so scared of? Do they worry that Chief Justice Roberts will start mugging for the camera? That Justice Scalia will insist on an added laugh track? That Justice Kagan will embark on a dangerous juice fast to slim down like a Hollywood starlet? (Actually, it looks like she already has.)
Those are not my concerns, but here is why I still think video coverage of U.S. Supreme Court arguments is a terrible idea….
The Supreme Court should not allow cameras during oral arguments because doing so would likely worsen public misunderstandings of the Court and its work. I know that seems counterintuitive. One might think — and some have argued, as David Lat and Kashmir Hill did in a Washington Post piece a few years ago — that showing the public what happens at OAs would increase public understanding.
Not so, I fear. Jeffrey Toobin’s New Yorker piece last month, Clarence Thomas’s Disgraceful Silence, highlights the problem. Toobin lambastes Justice Thomas for remaining silent during oral arguments for the last eight years, insisting that by not joining the fray in the courtroom, “Thomas is demeaning the Court” and “simply not doing his job.”
Nevermind the fact that, by the time he arrives on the bench, Justice Thomas and his clerks have been laboring for months over hundreds, sometimes thousands, of pages of briefs and research. Or that he produces just as many carefully crafted written opinions as his colleagues who are vocal in the courtroom. Rather, Toobin’s criticisms of Thomas begin and end with the public performance at oral arguments.
The comments on Toobin’s article offer an unpleasant snapshot of laypeople’s opinions, not only of Clarence Thomas, but also of the Court and its operations more generally. Many of the comments show how little otherwise reasonably informed, civics-literate Americans know about how appellate litigation actually works. (Then again, why should they know? How much do appellate litigators know about particle physics just because they read Scientific American?)
More than a mean-spirited bashing of a conservative Justice, Toobin’s article reveals a lot about why we shouldn’t have cameras in SCOTUS. Lawyers know about briefing, clerks’ research, conference, bench memos, etc. We know about opinions, how lengthy and thorough they are. Lawyers know better than to assume that OAs are really about the Justices arriving at a conclusion based primarily on what they hear in the courtroom. But much of the lay public does not know better. By suggesting that Thomas’s silence in oral arguments means that he is not participating in the process, Toobin reinforces a popular myth. Indeed, Toobin’s attack on Thomas capitalizes on his lay readers’ ignorance.
If there is any compelling argument against cameras in the courtroom, it may be that video coverage would magnify this sort of public misconception.
By arguing to keep cameras out of the courtroom, I am not suggesting that we should not want to watch the Court. If Supreme Court proceedings were televised, I would tune in. I would tune in a lot. However, just because I would love to watch every argument is no reason why cameras should be in the courtroom. Call my SCOTUS devotion, shared by a subset of the legal world, a professional interest, an intellectual curiosity, or even a voyeuristic fetish. But it is not the proper basis for policy.
The Court does not now hold arguments in secret. Everyone who really cares can read the transcript, listen to the audio, or visit the court and watch the arguments (at least on most occasions). They can view the information in some appropriate context. So, this debate is not about transparency. It is about theatrics. Do we want to turn OAs into reality TV? A chance to indulge notions of judicial celebrity, emphasizing personalities, reducing complexity to soundbites, translating law to politics? Do we want another chance to gawk and snark?
I worry too that many liberals in particular are eager to televise SCOTUS proceedings because doing so makes it easier to politicize the public’s view of the Court, something that often works to liberal advantage. A purely political view of the Court confirms the layperson’s tendency to think of cases in terms of outcomes only, unaware or unconcerned with the methodology used to decide.
Don’t think Baby Jesus weeps every time a woman swallows a birth control pill? Then Hobby Lobby surely should lose next week! If any Supreme Court Justice finds otherwise, that must mean that he or she is a tool of bigoted, misogynist conservative politics! Right? Nevermind the underlying legal questions, a close textual analysis of the law, or committing to a method of legal reasoning before applying it to set of facts. All of that, from the perspective of a public allowed to believe in a purely political view of SCOTUS, is hand-waving and gobbledygook.
This public perception that outcomes decide cases dovetails with a lot of liberal jurisprudence. Even staunchly conservative legal thinkers ought to acknowledge that most liberal judicial philosophy is more sophisticated than simply picking a desired outcome, then ruling by fiat. But the lay public does not see that. It only sees that liberal Justices often give social outcomes that seem more intuitive to a lot of Americans.
Good legal analysis involves a sequence of carefully reasoned steps that rarely fit in video clips teasing viewers to stay tuned through the next commercial break.
Video coverage of SCOTUS would further politicize the Court and its work in the eyes of the public. That may be fine by Erwin Chemerinsky or Jeff Toobin. Their side benefits from an ignorant populace that does not know its own ignorance. It would not, however, do justice to the way the highest court does the hard work of doing justice.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org