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US Senate debates requiring televised broadcasts of Supreme Court proceedings

The US Senate Judiciary Committee [official website] returned Tuesday to the longstanding debate [hearing materials] over whether to televise the proceedings of the US Supreme Court [official website], including whether Congress, as an equal branch of government, has the authority to require the court to admit cameras. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) [official websites] submitted the Cameras in the Courtroom Act of 2011 [S 1945 materials] bill on Monday, which would "permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court." Several witnesses opined on the validity of this idea, including former judiciary committee member Arlen Specter [JURIST news archive], a longtime proponent for the admittance of cameras. In his pre-hearing, published testimony [text, PDF], he argued the educational necessity of televising proceedings:

The average man on the street does not understand the intricacies of Supreme Court opinions, but does have the sense that something is amiss when there are so many 5-4 decisions. People think the law is objectively determinable and does not depend upon the individual judges' personal predilections. So the common sense question arises as to whether the Court is really stating the law when there are so many split decisions. When people are told that there are ideological splits, it is even more distressing. Frequent opinion polls show the public has little understanding of the Constitution or how government works. As we strive for an educated citizenry, especially among the younger generation, television should cover the government as well as sports and soaps. The authority and legitimacy of the Supreme Court depends upon its acceptance by the public. Television would give the public the opportunity to understand and evaluate the Court's performance and the Court and opportunity to establish its legitimacy.
Attorney Thomas Goldstein, in his remarks [text, PDF] argued that it is constitutionally valid to require the Supreme Court to televise proceedings, stating that although there is no explicit First Amendment [text] right to televising the proceedings, there is an implicit right to access to government materials. Goldstein also insisted the greatest issue with the idea lies in media exposure: "Here as in so many contexts, the fault lies with Jon Stewart and Stephen Colbert. The Justices would be right to predict that excerpts of questions or opinion announcements will be taken out of context and mocked in some instances." Attorney Maureen Mahoney argued against this understanding [text, PDF] of the Constitution, stating that separation of powers and historical treatment of the Supreme Court by the legislature forbids mandating them to change their practices.

The current Supreme Court roster has varying opinions on allowing cameras into their proceedings. In September, Justices Antonin Scalia and Stephen Breyer testified [hearing materials] before the Judiciary Committee on a variety of issues, including televising their arguments and opinion announcements. Both were against the idea, arguing that it would not be used by the populace for anything worthwhile. Scalia was concerned with the ability of the media to misrepresent the court: "I was initially in favor of televising, but the longer I've been there, the less good idea I think it is. [F]or every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 people who would see nothing but a 30-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do." In contrast, Justice Elena Kagan has spoken out for the introduction of cameras [CSPAN interview video]: "[I]f everybody could see this, it would make people feel so good about this branch of government and how it's operating and I thought, it's such a shame actually that only 200 people a day can get to see it and then a bunch of other people can read about it. Because reading about it is not the same experience as actually seeing." Justices Sonia Sotomayor and Samuel Alito were both for televising proceedings in their tenure as lower court judges. Sotomayor continues to warm to the idea, while Alito, in his confirmation hearings, urged that the Supreme Court faces different considerations than lower courts. The other justices, to varying degrees, have seemed wary of the idea [ABC News report], Chief Justice John Roberts speculating that it would encourage grandstanding and reduce substantive discussion. Former justice David Souter was against cameras [NYT report], saying in 1996, "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."

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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