Cameras May Yet Cover the Supremes

WASHINGTON -Though both the U.S. House and Senate televise their deliberations from gavel to gavel, and the White House has become a virtual TV studio, the Supreme Court has managed to fend off the camera's unblinking eye.

But television lights would reach the marble walls of the courtroom should the senior U.S. senator from Pennsylvania get his way.

"I want people to think about it," said Sen. Arlen Specter (R-Pa.), who said he would push legislation to allow live broadcasts of oral arguments at the court when the Senate returns in the new year.

He and Sen. Joseph Biden (D-Del.), who joins Specter in promoting efforts to put the high court on camera, are members of the Senate Judiciary Committee, which oversees the federal system.

The senators put their idea in writing in late September, introducing a bill (S. 3086) to permit cameras in the Supreme Court. Under the bill, a majority of the justices could vote to keep the lens cap on only if it would protect the due process rights of parties in a particular case. Specter said it was unlikely the bill would be passed this session.

Specter said radio feeds would be encompassed by rules that allow broadcast coverage, but were less important than television.

"Television is the communications medium of the present," he said, noting that he would only fight to allow television coverage.


Oral arguments at the Supreme Court have been recorded for decades, and tapes are available through the National Archives a few weeks after the end of the term. But electronic media and even still photography are prohibited.

The idea of cameras watching the court long has rankled justices.

"The day you see a camera come into our courtroom it is going to roll over my dead body," Justice David Souter told a House subcommittee most recently. "The people of the United States ought to be entitled to know that the Judiciary is an institution which is not a political institution."

When Specter floated the idea in a 1995 letter, Chief Justice William H. Rehnquist responded that a "majority are of the view that it would be unwise to depart from our present practice."

The Supreme Court would not respond to more recent efforts to televise proceedings, a Court spokesman said.

While justices have been recently tight-lipped about televised proceedings, it is unclear that the court will soon change its attitude.

Neither Vice President Al Gore nor Texas Gov. George W. Bush would take a judge's opinion on whether proceedings should be televised into account when appointing new members to the bench, campaign spokesmen said.

But Specter said televised proceedings have become necessary and claimed the court has seized power from Congress.

The Supreme Court "has assumed the power to decide the cutting-edge questions on public policy today and has, in effect, become virtually a 'super legislature,'" Specter said on the Senate floor when he introduced the bill. There "ought to be public knowledge and there ought to be a public response," he added.

Specter cited more than two dozen recent court decisions striking down acts of Congress.

The "court has gone out of its way, almost on a personal basis, to chastise and undercut Congress," Specter said, calling the Rehnquist court "unusually activist."

In May, for example, the Court voted 5-4 to strike down a 1996 law that effectively required cable operators to air adult pornographic programming between the hours of 10 p.m. and 6 a.m. only if they were unable or unwilling to fully scramble the channel's audio and video feeds.

The bill was the second of the year to allow cameras in federal courts. The other, introduced by Sen. Charles Grassley (R-Iowa) and co- sponsored by longtime open-court supporter Sen. Charles Schumer (D-N.Y.), would permit television coverage of trials and proceedings at district and appellate courts if the judge or judges involved in a case agree to it.

The bill includes the Supreme Court, but would let the justices pull the plug on any broadcasts of their proceedings.

Appellate courts are allowed to permit cameras to tape their proceedings, under a 1996 rule. Only two, the 2nd Circuit, based in New York, and the 9th Circuit, which covers California and eight other Western states, have agreed to allow recording and broadcasting.


Last fall, the 9th Circuit allowed Internet streaming of oral arguments in AT&T Corp.'s challenge to a law adopted by the city of Portland, Ore., that forced AT&T to provide cable access to unaffiliated Internet service providers.

The Supreme Court, unlike lower courts, always has been able to make its own rules about electronic media.

"C-SPAN, since 1985, has had a standing offer to the chief justice," said Bruce Collins, corporate vice-president and general counsel for the network. "If he allowed cameras, C-SPAN would televise every minute of oral argument."

The network, which broadcasts taped oral arguments on WCSP, its Washington, D.C., radio station, would show live television footage with little commentary, as it has done for other public events, Collins said.

He said he was uneasy about the movement to put cameras in the federal courts, however.

"People are doing the right thing for the wrong reasons," he said, noting critics of the court thought that cameras would influence the outcome of decisions. But taxpayers should be able to find out what the Supreme Court is doing, he said.

Federal courts were opened up to electronic media from 1991 to 1993 for a pilot program in six district courts and two courts of appeals. Judges and attorneys observed "small or no effects of camera presence on participants in the proceedings, courtroom decorum or the administration of justice," the judicial report found.

But the program was not renewed due to the camera's potential intimidating effect on witnesses and jurors.

The Constitution grants Congress the power to order courts to open their doors to cameras, supporters have argued.

"Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word," Specter said.

The Constitution allows Congress to set many rules for the Supreme Court and lower courts. Legislation passed by the House and Senate decides pay, time limits and jurisdictional matters for the courts and even the number of justices on the bench.

The need for legislation to get electronic media into the Supreme Court has annoyed the TV journalists that cover the court.


"It's really is a sad commentary on the Supreme Court that they did not put cameras in courts under their own volition," said Fred Graham, chief anchor and managing editor for Court TV. "The justices have not thought about the national interest here."

Graham, who covered the Supreme Court for
The New
York Times

and CBS News for more than two decades, said the public has a right to know how the court reaches its decisions.

Court TV, which showed federal hearings during the judicial experiment in the early 1990s, has lobbied Congress to let their equipment back into district and appellate courtrooms.

Efforts by lawmakers and networks to turn cameras on the judiciary have bothered some on Capitol Hill.

Permitting cameras and electronic media in the courtroom "could interfere with the federal courts' primary mission of dispensing justice," Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) said at a hearing on televised proceedings last month. The judiciary "has special expertise in this area and is entitled to a measure of deference."

Televised trials and oral arguments are common at the state level. Only Mississippi and South Dakota prohibit all video coverage of courtroom proceedings.

Cameras are allowed in trial courts in 37 states. Appellate or supreme courts in 48 states allow live broadcasts.

Some courtrooms were opened to cameras as early as 1950, but it was not until the 1980s that the practice became widespread, said John Rockwell, a research associate at the National Center for State Courts in Williamsburg, Va. State courts have had positive experiences with broadcast coverage, Rockwell said.

"It's been working beautifully," said Tracy Synan, spokesperson for the Supreme Court of Missouri, which opened its proceedings to cameras in 1997. Television "hasn't changed the tenor" of the arguments and decisions.

The rule that permits television coverage in Missouri allows other electronic media to record oral arguments as well.

"An oral argument before a Supreme Court is very much an audio event," said Steve Mays, vice president of Learfield Communications, which streams Missouri Supreme Court proceedings on the Internet. "There's no real video interest as far as I can see."

But at the Supreme Court, electronic media seems far from reaching the justices.

"I do not think that in the near future we're going to see anything like cameras in the Supreme Court," said legal scholar Bruce Fein.

But Fein is one of a growing number of Court watchers who would like to see it happen.

"People don't know what the heck the Court does," he said. They would be "enormously impressed."