Some thirty-five years ago, Chief Justice Warren Burger said that, save for its private conferences, the Supreme Court operates “in a goldfish bowl.” Perhaps. Then again, it is impossible to see the “fish” in real time unless one is physically present in the high Court. How then to look into the metaphorical bowl?
What about cameras in the Supreme Court? What about filming the oral exchanges between the Justices and lawyers? And then broadcasting them all to the American public in real time? The very thought of it made Justice David Souter cringe. Appearing before a House Appropriations subcommittee in March of 1996, the Justice minced no words: “I think the case is so strong that I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Thirteen years later, then Solicitor General Elena Kagan dodged the matter of cameras in the Supreme Court when the question was put to her by a C-SPAN reporter. Still, she did concede: “If cameras were in the courtroom, the American public would see an amazing and extraordinary event.”
Chief Justice Roberts addressed the question at some length in an October 2018 event, hosted by the University of Minnesota Law School. In the course of the televised C-SPAN exchange, the Chief Justice stated: “I think it would be very helpful in getting more people familiar with how the Court operates.” That said, he opposed televising oral arguments in the Court; he noted: “That’s not our job, to educate people. Our job is to carry out our role under the Constitution, is to interpret the Constitution and laws according to the rule of law. And, I think, having cameras in the courtroom would impede that process.”
Despite the “I have an open mind” and “would discuss it with my colleagues” trope offered during their confirmation hearings, once seated no Justice has openly endorsed the idea of having the Court’s proceedings filmed. Even Justice Sonia Sotomayor, who once seemed open to the idea, announced in 2013 that she had changed her mind. In March 2019, when Justices Kagan and Samuel Alito appeared before House lawmakers, they noted that the matter of cameras in the courtroom had not even been discussed by the Justices in recent years.
One door, however, has not been fully closed. In the course of then Judge Brett Kavanaugh’s otherwise controversial 2018 confirmation hearing, he made a noteworthy observation: “I’d want to think about the difference between oral arguments and the actual announcements of the decisions. I think those are two distinct things. There hasn’t been much focus on the possibility of live audio or video of the decision announcements. That’s a distinct issue from oral arguments and I’d be interested in thinking about that and talking to my colleagues. . . . I will have an open mind on it.”
In other words, Kavanaugh implied that televising a live video feed of the Justices announcing their rulings could be less threatening to the judicial process than televising the arguments themselves. While we believe that any asserted threats to the system of justice from allowing television of oral arguments in the Supreme Court are vastly overstated, we see no risk at all in letting the public see judicial decisions being announced.
The main objection typically given to allowing cameras in the Court is the specter of what has been labeled “lawyer showboating.” It was that concern, for example, that troubled Justice Alito when, in 2019, he appeared before a House Appropriations Committee. In the course of those televised remarks he stated: “Lawyers would find it irresistible to try to put in a little soundbite in the hope of being that evening on CNN, or Fox, or MSNBC or one of the broadcast networks. And that would detract from the value of the arguments in the decision-making process.” Separating oral arguments from the announcements of the decisions would alleviate whatever problems that might be said to arise from “lawyer showboating.”
Whatever the merits of the repeatedly expressed apprehension about such attorney misbehavior, we think there would be real value in, and no downside to, letting the broader public observe the announcement of the opinions themselves being televised. On opinion day, as it is known, the Justices summarize their opinions briefly, generally taking less than five minutes. Sometimes, dissenting jurists, disturbed or even angered by a majority ruling or opinion, speak at greater length, reading portions of their opinions. In some cases, the announcement of decisions by the Justices has been matter-of-fact. In others, there has been high constitutional drama in the courtroom as decisions have been announced. Rulings about who would become president in Bush v. Gore (2000), about campaign finance limitations in Citizens United v. F.E.C, (2010), or about constitutional rights in same-sex marriages in Obergefell v. Hodges (2015), are only a few examples of the latter.
While the press could (and did) report those rulings, the public could not see their announcement by the men and women who wrote them. No meaningful harm would or could have occurred if the announcements of those critical opinions had been seen live by the nation. The same logic applies now that the Court has agreed to review recent decisions by courts of appeals relating to the production of the President’s tax returns and financial records: Trump v. Vance, Jr. (2nd Cir 2019), Trump v. Mazars USA (DC Cir 2019) (en banc), and Trump v. Deutsche Bank (2nd Cir 2019).
Justice Kavanaugh’s reference to the possibility of letting the public view the announcement of Supreme Court rulings and opinions is encouraging. Doing so would be a small but important step in informing the public about judgements that have enormous impact on our lives. It would also likely enhance the esteem with which the public views the Court. As Chief Justice Roberts duly observed: “People would be pleased with what they saw in terms of how seriously we take our work.”
Floyd Abrams is senior counsel at Cahill Gordon & Reindel, a Visiting Lecturer at Yale Law School, and the author of The Soul of the First Amendment (2017). Ronald Collins is the former Harold S. Shefelman Scholar at the University of Washington School of Law and coauthor with David Skover of The Judge: 26 Machiavellian Lessons (2017).
