Despite public support for televising Supreme Court hearings, the ban will remain for the foreseeable future and the issue isn’t much of a topic of conversation among the justices, two of them told a House appropriations subcommittee Thursday.
Justices Samuel A. Alito Jr. and Elena Kagan both said they thought before joining the court that hearings should be televised. But Alito said it was the collective agreement of the court that attorney grandstanding would be “irresistible” and undermine “our paramount function, which is to decide cases in the best possible way.”
He said he knew that view was not popular.
“I recognize most people think that our arguments should be televised,” he said. “Most of the members of my family think the arguments should be televised.”
On other topics, Kagan said Chief Justice John G. Roberts Jr. is studying whether the Supreme Court should have its own ethics code. Both justices told the committee there were practical and constitutional reasons it would be unworkable to try to apply the code of conduct that governs the rest of the federal judiciary to the Supreme Court.
At the hearing called to review the court’s budget request, Alito said much of its proposed increase would be spent on physical and cyber security. Although he was not specific, Alito said there were a “startling” number of attempts in the past year to hack into the court’s computer system.
The question of whether the justices should televise hearings of their oral arguments is a perennial issue, and subcommittee chairman Rep. Mike Quigley (D-Ill.) gently pursued it.
“Most Americans have no idea how Supreme Court proceedings even work,” Quigley said, adding it was impossible for most to attend oral arguments, even though they are open to the public. But he acknowledged there was little Congress could do to force the issue on an equal branch of government.
“Clearly, it’s your decision,” he said.
While the issue animates others, it does not appear to consume the court. Kagan said the justices as a group have not discussed it since she joined the court in 2010.
Kagan said that when she observed the court as President Barack Obama’s solicitor general she thought it would be good for the public to see what she saw.
“It was thoughtful and it was probing and it was obvious that the justices really wanted to get things right,” Kagan said. “And it’s no small benefit if the American public were able to see that.”
But she now believes justices might “filter” themselves if they worried that playing devil’s advocate during arguments might be interpreted in a video clip as being biased.
If seeing the court at work “came at the expense of the way the institution functioned, that would be a very bad bargain,” she said.
Cameras are ubiquitous in state supreme courts, and many federal appeals courts allow them. Those who support more transparency say none of the problems the justices imagine have come to pass.
“It’s a bit disingenuous for Justices Alito and Kagan to state calmly, in front of several video cameras and a dais full of attorneys, that cameras in their courtroom would somehow impact the tone of their hearings, especially since concerns over grandstanding haven’t proven true in other appeals courts that do allow video,” said Gabe Roth of Fix the Court, one of the groups that favor cameras.
Instead, he said, showing the court at work “would do wonders to correct the American people’s often biased perception of our nation’s top court.”
On the issue of ethics, a proposal pending in Congress would apply the judicial code of conduct to the Supreme Court. Alito suggested it would be “inconsistent” with the Constitution — which mandates one Supreme Court and lower courts as created by Congress — to have “lower court judges . . . reviewing things done by Supreme Court justices.”
Kagan said she agreed and that the justices voluntarily comply with the code, as well as consulting with the court’s legal staff and each other about questions the code does not cover.
But she indicated the court is aware of the perception that it does not play by the rules set for others.
“The chief justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court,” Kagan said. “That’s something we have not discussed as a conference yet, and has pros and cons I’m sure, but it’s something that’s being thought very seriously about.”
Justices have not visited Congress since 2015 to present their budget request, and despite the deferential treatment — one member said it was an honor to address “two-ninths” of the Supreme Court — it likely will not become an annual event.
The issues don’t change much from year to year, Kagan said. But if the committee would like the justices to come back “in a few years’ time,” that could be arranged, she said.