The Sunday Review section of today’s New York Times features a “Sunday Dialogue” entitled “Putting the Justices on TV.” In response to a Times article about whether oral arguments at the United States Supreme Court should televised, Professor Nancy Marder of the IIT Chicago-Kent College of Law wrote a letter to the editor on December 5 asserting that “[t]here are good reasons for not allowing cameras in the Supreme Court.” The Times invited readers to respond to Professor Marder’s letter. Some of the responses were selected for publication in the “Sunday Dialogue,” along with a reply by Professor Marder” One of the letters chosen for publication was written by me. The full “Sunday Dialogue” can be found here.
Professor Marder, who clerked for Justice Stevens, worked for a year at the Paul Weiss law firm, and has been a law professor at the University of Southern California and Chicago-Kent for many years, is presumably as intelligent and persuasive an advocate against cameras in the Supreme Court as there is. None of her rationales are persuasive.
Professor Marder begins by stating that “the judiciary is the most trusted branch of government, polls show.” She contends that “[t]his respect is helped by the current balance of openness to the public (oral argument, online transcripts and published opinions) and the relative obscurity in which the justices work.” There are no poll results of which I am aware that tie public respect for the judiciary to the Supreme Court’s refusal to televise oral arguments. Even if it could be documented, the idea that citizens (only 46% of them in any event, down 15% in the last two years, according to another letter writer) respect the judiciary because only a very few can watch the nation’s highest court in action would be bizarre.
Professor Marder then argues that “[t]elevising oral arguments will make the justices’ job harder without making their work better,” and that cameras would “undermine … [t]he decorum of the courtroom and the formalities of legal discourse.” The highest courts of approximately 30 states, as well as the Supreme Court of Canada, webcast some or all their oral arguments. The Supreme Court of New Jersey has webcast its oral arguments since January 3, 2005 (the very first argument webcast was a case in which I was involved but did not argue). Neither our Supreme Court nor any of the other high courts that webcast have seen their work suffer. As I wrote in my letter, what makes a court’s work harder, or easier, is the nature, complexity and volume of its caseload, not the presence or absence of cameras. Nor has decorum or formality suffered, as a review of the webcast archive will show.
Professor Marder also worries that cameras “will lead [lawyers and justices] to think about their images as well as their arguments.” The notion that lawyers and justices do not already concern themselves with their images is, frankly, naive. Lawyers have always striven to make the best possible physical appearance before courts. For manyyears, a standard type of garb was required for advocates in the United States Supreme Court, a recognition that “image” has always counted. Even now, when lawyers have somewhat more freedom in their attire, what lawyer does not try to “dress to impress” when going to court, especially the nation’s highest court? As for the Justices, they are public figures who are constantly aware of their images. Some of them deliberately cultivate particular personas before the lawyers, parties, and the Supreme Court press corps, whether as tough interrogators, colorful sound-bite dispensers, silent observers, or myriad other postures. Cameras will not change that. Indeed, in the Supreme Court of New Jersey after cameras, just as in the United States Supreme Court with cameras, some Justices are voluble or entertaining while others are low-key or less likely to pose questions.
Professor Marder responds to my letter by citing Justice Souter’s statement that “when he sat on the New Hampshire Supreme Court, he felt that cameras altered his behavior.” Whatever the state of technology was at that time, over 20 years ago, the cameras in use in our Supreme Court are silent and not noticeable. Perhaps that is why no New Jersey Supreme Court Justice seems to share Justice Souter’s qualms about cameras. On the contrary, today’s Star-Ledger, coincidentally, contains an article by former Justice Peter Verniero in which he advocates televising United States Supreme Court arguments.
Lawyers too have been unaffected by the cameras in our Supreme Court. I have argued in that Court six times, with cameras and without them. Once an argument is under way, with seven experienced, highly intelligent and well-prepared Justices flinging questions my way, the last thing that I or any advocate would think about is how we look to the essentially invisible cameras.
Finally, Professor Marder frets that “[w]hen a justice poses a hypothetical to press the limits of an argument, it will inevitably end up on YouTube,” and will leave the public with distorted views of the court.” A YouTube search for New Jersey Supreme Court oral arguments produces relatively few relevant results. But even assuming that more United States Supreme Court arguments would be preserved on YouTube, the opportunity for the public, lawyers, and others to watch the Justices in action offers a tremendous civics lesson and opportunities for legal scholarship that far outweigh any risks. And, the response to any concern about oral argument snippets conveying a misleading or even false impression is the one that courts give all the time in cases involving free speech: the remedy for bad speech is not censorship, but more speech. Put the full argument on YouTube and let observers judge for themselves the accuracy of any snippets.
Besides, the Justices have life tenure, which is designed precisely to insulate them from popular discontent. Impeachment is a possibility, but a theoretical one at best. As a practical matter, therefore, even the potential of posting on YouTube would not constrain Justices in their remarks at oral argument.
The Justices do not currently conduct oral arguments without an audience. Lawyers, parties, lawyers and parties in other cases, press, and visitors can watch the arguments live. But only a few of them can travel to Washington and, often, there are not enough seats even for those few who do. Webcasting would allow everyone to watch the proceedings, live or from an archive. The experience of our Supreme Court and many others shows that webcasting affords public access while causing no harm.
Perhaps there are more or better arguments against webcasting than those that Professor Marder could offer within the space constraints of her letter to the editor. But I don’t think so, and neither does Justice Verniero, among many other jurists. The United States Supreme Court should webcast its oral arguments.