The health-care reform case gives the Supreme Court a chance to revolutionize constitutional law. But the revolution will not be televised. Keeping to long-established policy, the justices rejected live coverage of next week’s historic oral argument. Transcripts and audio recordings will be available that day. But only those lucky enough to secure one of the 400 seats in the courtroom can see the momentous debate.
Sen. Charles Grassley (R-Iowa), a co-sponsor of bipartisan legislation to require cameras at the Supreme Court, expressed disappointmentat the justices’ decision: “Every American should have the opportunity to see and hear this landmark case as it plays out, not just the select few allowed in the courtroom,” he said in a statement. “The health-care reform law has ramifications for the entire country. Video coverage would help with the public’s understanding of not only the controversial new law, but also the American judicial system.”
Grassley spoke for many in politics and the media who regard the court’s resistance to live coverage as an affront to the public’s right to know, or at least a missed opportunity for civic education.
Fashionable as such arguments may be, however, they misunderstand the Supreme Court’s role in the U.S. system of government.
Live TV is appropriate for congressional debates, votes and hearings because Congress is an arena of democratic struggle and majority rule. In that purely political setting, voters have a right to maximum feasible information, as a matter of civic education and official accountability.
The Supreme Court, by contrast, is not a political institution — or, at least, it is not supposed to be. It is a legal institution in which the best argument, popular or not, wins. In fact, the court is often called upon to overturn the will of the majority if it violates the Constitution.
The court performs this role best when maximally insulated from political pressures. Televising oral argument would subtly but significantly puncture that insulation by exposing the justices and the attorneys who argue before them to the same risks of personal criticism and, indeed, ridicule faced by elected politicians.
Over time, this would create incentives for participants at oral argument to play to the crowd or, alternatively, to play it safe. Either way, live video coverage could distort a process that must be conducted without any concern for short-term public reaction.
Does the risk seem trivial? Perhaps, but it’s still greater than any incremental benefits televising the proceedings would produce.
Audio recordings and verbatim transcripts are already available, as are majority and dissenting opinions. How much more understanding is to be gained from seeing the faces of the justices and attorneys live and in color?
A variant of the civic-education argument is that live TV would benefit the court, image-wise. As Elena Kagan put it in 2009, well before she was nominated to the court, “I think if you put cameras in the courtroom, people would say, ‘Wow.’ They would see their government working at a really high level.”
But even if image-burnishing were a proper objective for the court, it’s not necessary. Gallup polling from last fall showed that 63 percent of the public has confidence in the federal judiciary, a far higher level of trust than exists in Congress or the executive branch.
The court’s approval rating has declined from 61 percent to 46 percent over the past two years, Gallup found, probably due to a backlash from opponents of the 2010 Citizens United ruling on campaign finance regulation. Still, the court is three times more popular than Congress.
As for accountability, sunlight is, indeed, a good disinfectant — but exactly what is the undisclosed scandal at Supreme Court oral argument? With the exchanges already transparently documented, and open to a live audience, including the media, the justices can’t hide outrageous conduct.
Cameras in the Supreme Court are a solution in search of a problem. No doubt live TV coverage would bring the court down into the democratic hurly-burly with the rest of us, while providing plenty of fresh grist for talk shows, YouTube, AutoTune and other apps.
But it would represent the triumph of mindless “full disclosure” over genuine constitutional concerns — and begin the deterioration of one of the few public proceedings in Washington that can still be described as solemn.