Senate Ponders Cameras In High Court...Again

Sen. Charles Grassley (R-Iowa) has teamed with Sen. Dick Durbin (D-Ill.) to introduce the Cameras in the Courtroom Act of 2011, the latest effort to get cameras in the Supreme Court.

The bill would require TV coverage of all open sessions of the Court unless the majority of justices decided that "doing so would constitute a violation of the due process rights of one or more of the parties before the Court." A similar bill was approved by the full Judiciary Committee in the last Congress.

Grassley has been pushing for opening up the high court to cameras for over a decade. He said at a hearing on the bill Tuesday in the Senate Subcommittee on Administration, Oversight and the Courts, that his push stemmed from the audio tapes of the Bush vs. Gore oral argument that were released after he and others pressed the court to broadcast the proceedings live.

He said that was a sign of progress. He noted as further progress the court's decision last year to start releasing audiotapes regularly at the end of each week -- they had previously only been available at the end of each term. "But it is not enough," he told the committee. "I believe that the nature of our government and the fundamental principles upon which it was built require more."

Grassley wrote to Chief Justice John Roberts last month urging him to permit cameras for the debate over the Obama healthcare law.

Subcommittee Chair Amy Klobuchar (D-Minn.), herself a former prosecutor, said she has supported efforts to open up all courts to cameras, but said she recognizes some issues with opening up lower, trial, courts.

Ranking member Sen. Jeff Sessions (R-Ala.) said one of the court's strengths was that it was removed from the "hustle and bustle" of everyday life. He said the decision is what is important, and speaks for itself. He said the judges visage or personality is not what the court is about. He said to the extent that cameras undermine the sense of objectivity and cause courts to be percieved more as a policy or political entity, the court's moral authority has, perhaps, been slightly reduced, he said. "To the degree our judges worry about that," he said, " I think we should give them deference."

Speaking for himself at the hearing, and not the court, Third Circuit Judge Anthony Scirica, familiar to broadcasters from that court's media ownership decisions, argued that Congress should not mandate cameras for a co-equal branch of government, saying it would likely raise constitutional issues related to separation of powers. "Justices take an oath to 'faithfully and impartially discharge and perform all the duties' of the office. It is not unreasonable to defer to the Court on how it conducts its deliberations and speaks to the American people," he argued.

Scirica pointed out that judges sometimes ask tough, provacative questions to test arguments (one reason it is sometimes tough to gauge how a judge might rule from their questioning). "In a high profile or especially sensitive case, some might view a judge's question as revealing bias or a closed mind unreceptive to a party's position, creating the impression that the judge is not neutral, not fair. Because of these concerns, I have sometimes trimmed my sails when asking questions in these high profile cases. Cameras would likely augment this problem."

Scirica said the court had already become more transparent, pointing to the weekly release of audiotapes, the same-day posting of decisions and oral argument on its Web site. He also pointed out that the justices speak, teach and hold moot courts, and that all recently gave televised interviews to C-SPAN. 

"A Court that is charged with the duty under our Constitution to 'say what the law is,' that has merited the confidence of the American people, and that has made its processes ever more accessible, should be afforded deference in its own governance, including the decision whether, when, or how cameras should be present during its oral arguments."

Taking the other side was Tom Goldstein, partner in Goldstein & Russell and publisher of the indispensible-for-court-watchers resource, SCOTUS blog.

While Goldstein also recognized the court's efforts to make information more accessible, he said barriers remain to a truly public process and that "allowing cameras inside the Courtroom is the next logical step." He called televising, and webcasting, "a tremendous vehicle for public accessibility."

"Broadcasts of Court proceedings will reach segments of the public in a way that transcripts and audio recordings cannot," he argued.

"There cannot be any serious dispute that whereas at most a few hundred thousand people (almost all lawyers) will read the Court's opinion or oral argument transcript in the health care cases, tens of millions of ordinary Americans (at the very least) would watch all or part of the proceedings in the case with great interest."

He pointed out that the Ninth and Second Circuits currently televise proceedings and if there had been problems, "we would know it."

Goldstein said that. Scirica later pointed out that was only two of nine. He said that although the Ninth does it a great deal, the Second does it very infrequently.

"At a time when public confidence in government is flagging, this is a tremendous opportunity for the Court to use this technology as a vehicle to re-energize public faith in our democratic system," Goldstein said, adding that the critical point for him was that they were public proceedings. He said he thought the legislation would hold up if it were challenged in court, since it is directed toward public, not private, proceedings.

Former Senator Arlen Specter, a onetime district attorney who was a lead voice for cameras in the courts, was also a witness. He said the public benefit of an informed public and a transparent process "vastly" outweighs the "collegial dynamics" of the court. "I believe that if the court were televised, there would be an understanding and an accountability." He pointed to the High Court's "monumental" 5-4 decision in Citizens United, which allowed unlimited, anonymous corporate expenditures. He said the court in the case ignored a 100,000-page record and "literally yanked the rug out from under Congress." He said nobody really understands what is happening in these cases, and it is hard enough to convey even if there were television, but at least that would be an "enormous" start. "Sunlight is the best disinfectant," he said, echoing a phrase he used in his own decades-long push for legislation.

He pointed out that the full judiciary committee, of which he is former chairman, three times reported a similar bill out of committee to no avail.

The hearing itself was Webcast; click here to follow the arguments online.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.