Supreme Court still resists pressure to televise proceedings

By Robert Barnes
Washington Post Staff Writer
Monday, April 19, 2010; A13

As two Supreme Court justices submitted to their annual, gentle congressional interrogation last week, it seemed for the briefest of moments that there might be movement on the most perennial of questions about the court: whether its proceedings will ever be televised.

Responding to such a query, Justice Stephen G. Breyer said that, in fact, the U.S. Judicial Conference is considering a pilot program to examine the issue of cameras in federal courts.

"And that would be a pilot project in your courtroom?" Rep. Adam Schiff (D-Calif.) asked hopefully.

Moment over. "No," Breyer replied. "It wouldn't be in our court. . . . The judicial conference does not have to do with our court. It has to do with the lower court."

And so it goes, on and on. Congress pushes for televised proceedings, and the court listens politely and says, "No thanks." If anything, it seems less interested in making available to the public the sounds of the oral arguments that take place inside the Marble Palace.

Last week, C-SPAN said the court rejected its request, as well as from others, to release same-day audio of Monday's oral arguments in CLS v. Martinez. That First Amendment case tests whether a public university's anti-discrimination policy violates a religious student group's freedom of speech and exercise of religion.

The denial, which came without explanation, as is the court's custom, marks a shutout for the network this term. The court denied all seven requests, though it did release same-day audio in September of oral arguments in Citizens United v. Federal Election Commission, a case carried over from last term.

In every term since John G. Roberts Jr. became chief justice in 2005, the court has denied a greater percentage of requests. According to C-SPAN's records, the court has granted 10 of 34 requests in the past five terms. Because the court does not give reasons for such decisions, it is hard to know, for instance, why audio was released for the 2008 arguments in the landmark Second Amendment case District of Columbia v. Heller, but not for this year's Second Amendment arguments in McDonald v. City of Chicago.

Or why the audio request for Justice Samuel A. Alito's investiture in 2006 was denied, but cameras and a pool of reporters were invited for Justice Sonia Sotomayor's swearing-in.

Schiff complained to Breyer and Justice Clarence Thomas, who appeared before a House Appropriations subcommittee to present the court's proposed budget, that coverage by the media still relies on "sketches and audiotapes, which seems anachronistic. I actually think the change is inevitable."

Breyer said Schiff might be right, and in truth he is one of the justices least likely to make a full-throated argument for keeping things the way they are.

Breyer said he is aware that cameras could be "a big plus for the court and for the public. I think they'll see that we do our job seriously. We don't always get everything right, but we take it very seriously. People are well prepared; the lawyers are well prepared. The judges are trying to think out problems that are difficult problems. And for the public to see that, I think, would be a plus."

But he said that if the Supreme Court allowed cameras, there would be pressure on criminal trial courts to do the same, and that concerns some judges. He repeated the worry of other justices that showing oral arguments, which can be dense with legalese and hypotheticals, might not lead to greater understanding of what the court does.

"Because you can only show the oral argument, which is 1 percent of what goes on," Breyer said.

And he said the court already provides the public, in the form of its opinions and dissents, a detailed explanation of its actions. "A good appellate judge -- the ideal -- is you write not just the words [of an opinion], you write the reasons why you wrote the words," Breyer said.

Sen. Arlen Specter (D-Pa.), a longtime advocate of cameras at the Supreme Court, said last week that televised proceedings would show what the public already thinks: that the court is an ideological battleground for society's most contentious issues.

But he, too, seems to have tired of the fight. His bill to require the court to televise its proceedings has been downgraded to a recommendation. He still thinks Congress has the right to force the court to make such a move, he said, but if it comes down to a separation-of-powers argument, he knows who has the final word.


Later in the hearing . . .

Rep. Ander Crenshaw (R-Fla.): "Just one last question. Just, I've always -- I've got two bright people in front of me. And when I was reading law cases, one time I read a case and I can't remember the case and I can't remember the justice. But the statement was that versatility of circumstance often mocks the natural desire for definitiveness. And I always -- does that ring a bell with you all, and was that Felix Frankfurter, or -- not that you would know that. But I always wondered who said that. I need to go back and look that up.

Breyer: (Smile.)

Thomas: "Google it."

Crenshaw: "Google it?"

Thomas: "Yeah, you should Google it, yeah. You can Google on your BlackBerry."

Crenshaw: "Well, I'll do that."

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