Three-quarters of Americans want cameras in the Supreme Court as one federal Judge demonstrates why some of his colleagues don’t


(Photo by Mark Wilson/Getty Images)

The U.S. Supreme Court has long resisted efforts to allow cameras to broadcast its proceedings, despite overwhelming public support for the idea. A video of a federal court session in New York this week might shed a little light on why.

On Tuesday, a three-judge panel in the Second Circuit Court of Appeals in Manhattan heard oral arguments in American Civil Liberties Union v. Clapper. That's the case in which the nonprofit is challenging the National Security Agency's bulk collection of telephone records under Section 215 of the USA Patriot Act. Judge Gerald Lynch opened the proceedings by addressing the television viewing audience.

Federal Judge Gerald Lynch breaks the fourth wall during an appeals court session on an NSA bulk-collection case. (C-SPAN)

"I thought I would say one thing," Lynch said immediately after the court was gaveled to order. "This case is apparently of sufficient interest that it's being broadcast. I don't know who is going to watch it, if anyone," he said, smiling.

"But," said Lynch, "to the extent that it's going to be watched by people who aren't lawyers and aren't familiar with appellate arguments, I thought I'd just say one thing about what is not likely to be seen here." Lynch explained that the issue before the court isn't whether bulk data collection is "a good thing or a bad thing." Instead, it's whether the Second Circuit Court of Appeals has jurisdiction in the case and whether such collection is legal. Judges who interrupt lawyers aren't being "rude," explained Lynch. That's just how appeals cases work.

Lynch's contextualizing for the viewing audience lasted about three minutes.

But while some of Lynch's colleagues might be uncomfortable with his breaking of the fourth wall, the flesh-and-blood legal education he provided is often cited as exactly one of the benefits of having cameras in court.

A study conducted by the Virginia-based survey firm McLaughlin & Associates and released in early August finds that the American public is solidly behind the idea of letting cameras into the country's highest court.

Asked whether the court should allow "television cameras to film the court's proceedings and broadcast them live to the American people," 74 percent of respondents were in favor, 41 percent strongly so. A little strangely, a slightly smaller group -- 71 percent -- backed the idea of live online audiocasts of the proceedings. But both were more popular than requiring justices to release their financial disclosure forms online, and not just on paper. Only 68 percent liked that form of digital transparency.

But Supreme Court justices, despite the fact that they often supported the idea of cameras while serving on lower courts, have proven gun-shy once they make it to the high court. Their worry? In part, it's the Observer Effect. That is, the very existence of watchers can't help but change the proceedings. Justice Anthony Kennedy has put it this way: "The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite."

And in a way, there's a certain irony that Lynch's mini-legal lecture happened during this NSA bulk-collection case. The Observer Effect that Lynch is channeling up on the bench is something that privacy activists have cited as a reason that Section 215 needs to go: Simply knowing that someone is out there watching -- whether it's court nerds on their couches at home or federal surveillance professionals at Fort Meade -- is enough to skew how humans behave.

Nancy Scola is a reporter who covers the intersections of technology and public policy, politics, and governance.
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Nancy Scola · September 3