on Mar 14, 2022
at 11:15 am
Justices Samuel Alito and Elena Kagan testify against televising Supreme Court proceedings during a 2019 hearing of the House Appropriations Committee. (C-SPAN)
[Editor’s note: Cameras remain prohibited during sessions of the Supreme Court, but some lawmakers and advocates want to change that. We invited experts on each side to weigh in on the current state of the debate. The other piece in this series can be found here.]
Jeffrey A. Rosen is a nonresident fellow at the American Enterprise Institute. He was previously deputy attorney general of the United States, and acting attorney general, and has practiced law in Washington, D.C. since 1982.
With hearings set to begin next week on Supreme Court nominee Ketanji Brown Jackson, one question that may return is that of cameras at the court. This seems likely because, in recent years, some in the media and even academia have treated the Supreme Court as a political body instead of a legal one.
A bill proposed in the House of Representatives and Senate would have Congress direct that video cameras record oral arguments at the Supreme Court. The bill, which has already cleared the Senate Judiciary Committee, would make the Supreme Court more like Congress — the last thing Americans should want.
Congress and its congressional committee hearings are televised. The Supreme Court’s proceedings are not. Its website states: “No photography or audio/video recording is allowed inside the Courtroom.” Having testified at congressional hearings and argued before the Supreme Court, I’ve seen that they have very different functions, and extremely different kinds of decorum. Treating them the same, with cameras in each, would be a mistake.
Because Congress is meant to represent the voters’ will, the American people require ways to assess if their duly elected representatives are doing so. They need the means to understand the debates underway about making or changing laws, so that they can participate in the process of public persuasion of fellow voters and their representatives.
That is not the case with the Supreme Court, which interprets the law, and which should be indifferent to public opinion when hearing individual cases for resolution. As Chief Justice John Roberts said in a 2018 interview, “Our job is to carry out our role under the Constitution to interpret the Constitution and laws according to the rule of law, and I think that having cameras in the courtroom would impede that process.” In adjudicating cases, the court does not need feedback from the public; it needs to rigorously adhere to the laws enacted by Congress and to the Constitution that undergirds our representative democracy. Cameras do not advance that function.
Supporters of cameras in the courtroom typically claim there is a need for public transparency. One of the bill sponsors, Rep. Gerry Connolly, D-Va., has stated that the Supreme Court “must be accountable to the American public.” Accountability doesn’t, in fact, translate to video recordings. For one thing, the court’s public sessions are already quite accessible: Since the onset of the COVID-19 pandemic, the court has offered live audio of oral arguments, and it makes transcripts and audio recordings available shortly after they occur. More fundamentally, it is the court’s rulings that actually count — and those are entirely transparent and publicly available, replete with written opinions that explain the result and reasoning. As Justice Sonia Sotomayor explained in 2019, “Every decision we make is written. Fully explained, fully defended, fully laid out. But you can’t do that and maintain a show.”
As to the different decorum: We should not want our judges to be celebrities with constituencies. To the contrary, we should want them to be limited interpreters of the law, quite unlike politicians. While I don’t think there is a high risk that the current justices might “play to the cameras,” it would be less safe to say that about some of the lawyers appearing before the court. Justice Samuel Alito warned in a 2019 House hearing “that lawyers would find it irresistible to try and put in a little sound bite, in the hope of being that evening on … one of the broadcast networks. And that would detract from the value of the arguments in the decision-making process”.
We’ve seen too many examples of external agitators disrupting congressional hearings to get attention on television. We certainly do not want to create another forum and mechanism for that to happen in our courts. Such disruptions would not only be unfair to the actual parties in court; they would disrespect one of our most crucial institutions that represents the rule of law itself.
Finally, comity between the separate branches by itself ought to cause Congress to refrain from dictating the presence of video cameras at the Supreme Court. Justices Anthony Kennedy and Stephen Breyer explained their skepticism at a 2013 House hearing, and Justice Elena Kagan — alongside Alito at the 2019 House hearing — did likewise. Neither branch should be telling the other whether to allow video cameras at its own proceedings. Indeed, if comity were not sufficient to induce each branch to respect the other, it seems constitutionally questionable for Congress unilaterally to intrude into the operation of the court in such a fundamental way.
There simply is no legitimate need for video cameras at the Supreme Court. It should be clear by now that the expressed or implicit desire of politicians to please the television journalists who cover them is not a valid reason to dictate a change in how the court operates. Putting video cameras in the court would simply make it more like Congress. That is neither the role nor the function of the judiciary. It is not something sensible people should want for the Supreme Court.