Chief Justice John Roberts swept onto the U.S. Supreme Court as a camera-ready jurist with an air of modernity. But there’s one area where he has shown little willingness to adapt to the information age: allowing cameras that would let the public watch real time what happens inside the country’s highest court.
Advocates for open government have been pushing the Supreme Court for decades to reveal its work in progress to the public at large. And they have had successes. The court once squirreled away audio recordings in the National Archives, often long after the cases had been argued. Today, those recordings are posted to the Supreme Court website every Friday during argument sessions. But video has proven a step too far. With the court expected to release this week its decision on the constitutionality of the health care bill, Chairman Patrick Leahy and Ranking Member Chuck Grassley of the Senate Judiciary Committee are prodding Roberts to let cameras in.
“Their work should be as transparent as any other branch of government,” says Bruce Collins, general counsel of C-SPAN, which along with several dozen organizations also asked Roberts to air the health care decision. The court has not responded.
As the Supreme Court's chief administrator, Roberts is the decider on the court's operations. In his silence, he seems to be doing something for which he’d tear a lawyer to pieces: resting on assumptions.
One of the most frequently heard worries is that putting cameras inside the Supreme Court would turn the courtroom into a stage. But there are strong reasons to believe that the internal dynamics of the court would keep participants from behaving badly. Lyle Denniston has covered the Supreme Court for more than 50 years, lately for the closely watched SCOTUSblog. “A lawyer gets up in the Supreme Court and… knows that they have one task - that is, to persuade five people,” Denniston said in a C-SPAN interview. The audience is the nine folks in robes, and there’s a very good chance that the focus it takes to win over a majority is a more powerful force than the desire to make a flashy public showing.
And there’s a similar thing happening on the bench. During oral arguments, the justices are working to win over one another. Ironically, that might help to explain a phenomenon, noted in lower courts, where justices appear to become more conservative on camera. They seem to grow increasingly worried about protecting both collegiality and the court’s authority.
Several newer justices, for instance, have testified during their confirmation hearings that live Supreme Court footage seems like a pretty good idea. “I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” Elena Kagan testified during hers. Once on the court, though, by all appearances they refrain from rocking the boat. Stephen Breyer’s evolution sums up the trend. While chief judge of the U.S. Court of Appeals for the First Circuit, he volunteered his court for cameras. But after a decade on the Supreme Court, Breyer said that the justices are trustees of a “reputation of great importance so that government will work fairly in America... And not one of us wants to take a step that could undermine the courts as an institution."
Breyer’s framing suggests a failure of imagination. The flourishing open government movement isn’t simply about peeling back the curtain on wrongdoing. Openness can be affirming, too.
And that raises the possibility that Roberts and company are actually damaging the court by closing it off. “By being somewhat remote from the popular culture,” C-SPAN’s Collins explains the argument (which he disagrees with, naturally), “they retain the dignity and therefore enhance the authority of the court.” Yet documentary footage provides fodder for dissections that remind us all that these opinions aren’t descended from the heavens. There’s public appetite for it, and in the digital age, there are the tools to do something with it. SCOTUSblog’s in-court live blog, for example, drew a reported 70,000 readers on Friday, when there was a chance that the court was going to issue the health care decision. (That prompted an Atlanta Journal-Constitution reporter to tweet, “One day we'll tell our grandkids about how we were using Cover It Live [sic] to figure out what the Supreme Court is doing.”)
A less mysterious Supreme Court would be more tightly moored to American life as a whole, in the same way that Americans tend to hate Congress but approve of their congressperson.
If there’s something that Chief Justice Roberts has proven skilled at, it’s threading needles. Here, he has a chance to figure out a decision everyone can rally behind. Congress, for its part, lets C-SPAN’s cameras in but doesn’t allow for reaction shots. Roberts could get similarly creative, like stationing a camera behind the bench - good live-blogging material, bad source footage for “The Daily Show.”
Behind-the-bench shots might reveal bald spots. But it’s not such a bad thing for the public to be reminded actual humans are up on that bench.