This week Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) introduced the Cameras in the Courtroom Act of 2011, which would require television coverage of all open sessions of the Supreme Court. It sounds at first like an eminently reasonable request: Supreme Court decisions have significant implications for all Americans, so surely all Americans have a right to observe the process. But I believe the risks outweigh the potential gains because of two intersecting phenomena: first, something researchers in my field call “the observer’s paradox,” and, second, a cultural force that is pervasive in our public lives, “the argument culture.”
The observer’s paradox has long been a concern among linguists who study language as it is used in everyday life. Seeking to analyze “natural” interaction, we bring audio or video recorders to events that would have happened anyway. But we face a paradox: If we aren’t there and aren’t recording, we can’t study the interaction. But if we attend and record, our presence changes the interaction, so it is no longer “natural.” One quasi-solution to this dilemma was devised by the pioneering University of Pennsylvania sociolinguist William Labov, who asked people to talk about times when they thought to themselves, “This is it! I’m going to die.” The emotions associated with near-death experiences overrode the self-consciousness of being recorded, so voilà! — the researcher gets to record uncensored speech.
Another approach is the one I took in gathering data for my doctoral dissertation: record interactions in which the researcher is a natural participant. Turning my friends into my research subjects, I requested permission to record our conversation over Thanksgiving dinner. As expected, the dinner guests got so caught up in the social interaction that they forgot about the tape recorder sitting among the platters of food.
The logic of these approaches can be applied to Supreme Court arguments. The urgency of the event should make the justices and the lawyers forget the cameras. So, too, should the justices’ (if not the lawyers’) familiarity with each other and with the event.
But add to the equation the second phenomenon, “the argument culture”: the way that increasingly belligerent political tactics interplay with the 24-hour news cycle to create a mainstay of our public discourse — a high-stakes game of Gotcha! Audience-hungry TV producers, requiring gripping visual footage, provide a ready market for dramatic moments that, when taken out of context and replayed obsessively, can make a political opponent look bad. All it would take is a single instance in which a justice’s performance — or appearance — is held up for disparagement or ridicule, for the justices to mix their attention to the content of the arguments with attention to how their performance might come across on TV.
Transcripts and audio recordings of Supreme Court oral arguments are already made available shortly after they occur. Those who favor televising the proceedings point out that reading transcripts and listening to audio are not the same as watching while the justices ask questions and lawyers answer them. This point is indisputable. As someone who enjoys listening to oral arguments on C-SPAN radio, I know I would enjoy even more the excitement of live give-and-take.
And therein lies the risk. Audio recordings and transcripts fulfill the public’s right to know the content of the court’s proceedings. Television, however, is spectacle. The visual images outweigh the verbal content. (A personal testimony: My mother never showed much interest in my radio interviews, but her excitement was boundless when I appeared on television — and her comments were never about what I’d said but always about how I looked.) The enjoyment and edification of a small number of viewers who would watch an hours-long exchange is not as important as the damage that could be done by a few viewers who would be watching in hopes of hitting the pay dirt of an exchange that could embarrass or, even better, demonize a justice whose decisions they don’t like.
We should heed the observer’s paradox: Televising Supreme Court arguments would not give us a neutral view of how the court operates when cameras are not there. Instead, it might fundamentally change the nature of the court’s proceedings. An Egyptian once told me that his reverence for the United States rests on our greatest democratic institution, the Supreme Court. Although it might seem that televising the court’s oral arguments would reinforce the democratic nature of this institution, doing so could instead bolster the politicizing of the court — and thereby weaken it.
Deborah Tannen is a professor of linguistics at Georgetown University. Her books include “The Argument Culture” and, most recently, “You Were Always Mom’s Favorite!”