Published January 14, 2011
[Mr. Whelan’s brief essay was paired with another contributor’s essay that supported a “Yes” answer.]
There is very little to be gained—and much at risk of being lost—from televising Supreme Court proceedings.
Largely thanks to the Internet, those interested in following the Supreme Court live in a Golden Age that is dramatically different from even a decade ago. Supreme Court opinions—by far the most important material for studying the court—are posted online as soon as they are announced. Briefs, the best resources for learning about pending cases, are also widely available online, including [via a link] on the Supreme Court’s website. And instead of relying on generalist Supreme Court reporters, members of the public can consult a broad range of expert analysis and commentary on the Internet.
Oral arguments at the court attract a degree of attention that dwarfs their actual importance. But here too, anyone eager to read the tea leaves of oral argument now has ample opportunity to do so. The court makes argument transcripts available online on the very day of argument—typically within 90 minutes—and posts audio recordings of arguments at the end of each week. It is difficult to see how televising oral arguments would add much to the abundant stock of available information.
By contrast, the potential downside of televising Supreme Court proceedings is substantial. The culture of the court is, for good reason, predominantly textual. The overwhelming majority of the justices’ work consists of reading and writing, with reasoned deliberation among the justices about the meaning of legal texts.
Because of the emotional power of images, cameras, far more than microphones, transform the behavior of those who know they are being recorded. In some contexts, that transformation will be for the better. But the likely consequences for the Supreme Court would be sharply negative—and far more so than for any other appellate court, given the Supreme Court’s much higher profile.
In particular, cameras at oral argument and at sessions in which rulings are announced would encourage and reward political grandstanding by the justices (as well as by counsel and protesters in the courtroom). Whether or not the justices actually succumbed to the temptation to play to the national viewing audience—and what reason is there to think that, sooner or later, they wouldn’t?—their colleagues would often suspect they had.
The court would become more politicized, and the resulting resentment and distrust among the justices would disserve the ideal of reasoned deliberation—an ideal, to be sure, that is often not realized but that is at least still professed and pursued.
Ed Whelan is President of the Ethics and Public Policy Center.