As more and more young people become interested in what is going on in the Supreme Court, there has been a call for cameras to be allowed inside the deliberations. With an especially important verdict on gay marriage rights for all 50 states coming in April, as well as many other heavy decisions, it seems like there’s no time like the present to install cameras in the hallowed halls’ however, two justices–Elena Kagan and Sonia Sotomayor–recently spoke against the move, making it unclear if the American people will ever have a glimpse into the court’s proceedings.

There is such transparency for some courts and cases–especially those involving celebrities and high-profile individuals. A group of media and legal organizations have joined together to form an organization called the Coalition for Court Transparency, and it petitioned Chief Justice John Roberts to start televising the arguments occurring in the nation’s capital. His response? “There are no plans to change the Court’s current practices.”

Throughout the last two decades or so, the justices have given many different reasons for banning cameras inside of the courtroom, including: cameras will encourage “showy” testimonials, the media will use embarrassing sound bites, or that people will misunderstand and judge without looking into the details; however, there are some who speak of the importance of having some transparency within the Supreme Court because it would encourage Americans to learn more about their judicial system: “There’s a real hunger out there from people to know more about the Supreme Court and the justices,” said Ariane de Vogue, Supreme Court correspondent for ABC News. “I think it would be a marvelous educational opportunity.”

Read on to learn about the considerations that must be taken into account during the debate over whether or not to put cameras in the Supreme Court.

Why should we break tradition?

The Supreme Court stands virtually alone when it comes to cameras inside the courtroom. States make their own rules when it comes to this issue, but many do allow them–as do the highest courts in some nations. Some states even livestream proceedings.

Jerry Goldman, director of the Oyez Project at the Chicago-Kent College of Law at the Illinois Institute of Technology says that the Supreme Court is simply behind the times and always will be unless there is some new blood within its walls: “It’s just uncomfortable with change,” said Goldman, whose website catalogs oral argument audio. “They’re always in the caboose.”

Another professor, Sonja West from the University of Georgia School of Law, sees it a different way: the Supreme Court Justices fear breaking something that already works well, afraid what such a monumental change will bring: “They feel very much like the guardians of a very important institution,” said West, who wrote about the Court’s camera policy in the Brigham Young University Law Review. West also says that the Court is so staunchly traditional because of the respect that shroud of secrecy gives–and respect is a main source of power.

Yet another professor, this one of Constitutional Law at Georgia State, Eric Segall, argues that because the justices are government officials, they should not have the choice of whether or not to be transparent. He suggests that the Court should have the burden of proving why cameras should not be allowed, and not the other way around. “This is a public hearing,” Segall said. “It’s open to the public. It’s material. It’s relevant, and people want to televise it. We should be allowed to see it.”

“We have three branches of government,” Dahlia Lithwick, who covers the Supreme Court for Slate, said about camera access. “Two of them are totally transparent, and one of them is completely secret, and that’s a problem.”

Why might the Supreme Court not want cameras?

There have been a few arguments made repeatedly by the Supreme Court justices and those who support them in their calls for privacy. Each one has reasons why it’s a good idea to retain some mystery, but there are also reasons why the need for transparency may overcome the possible adverse effects.

The Public Will Misunderstand What is Going On

Justices have traditionally opposed cameras because people will not understand the role of oral arguments and will jump to conclusions and “root” for an outcome of the case. Justice Scalia has even gone on record to say that the complexity and interworking of the law “is why the University of Chicago Law Review is not sold at a 7-Eleven.”

Sotomayor told a reporter that arguments should not be televised in part because most viewers “don’t take the time to appreciate what the Court is doing.”

However, to some, this view has it backward. Broadcasts of arguments would help the public learn about the Court’s operations, according to Segall. “The more we see Justice [Antonin] Scalia being obnoxious, the more we see Justice [Anthony] Kennedy acting like a law professor, the more we see Justice [Clarence] Thomas sitting there and doing nothing, the more we have insight into the people who work for us.”

Still, there is a chance that people will misunderstand what is happening with the Supreme Court. The Supreme Court has always had problems when it comes to public opinion with consistent periods of low approval ratings, it is easy to see why that could be a fear. A simple misunderstanding could create mistrust between the public and the Court, undermining their effectiveness.

Even for those who are college educated, law isn’t typically a mandatory course like math or even political science. It will be difficult for the general public to grasp some of what is happening within the Supreme Court.

Picking and Choosing

Justices have also feared that putting video cameras into the proceedings will allows journalists to take quotes from the hearing and use them as sound bites for laughs and shock.

Kennedy once said he does not want the Court to become part of “the national entertainment network.”

And Scalia told the Senate Judiciary Committee, “[F]or every ten people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a thirty-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do.”

Pretty much every news network uses videos of politicians in order to prove points–and taking things out of context seems to be the norm. So, is there something to be said about fearing the editing process? Of course–as with anything. However, it will be up to the journalist to uphold ethics when reporting the news. What comes out of the mouths of the Justices isn’t always how they truly feel or how they want the case to go. Any footage that is taken from the proceedings will have to be taken with a grain of salt.

Cameras and Audio

In addition to video imaging from within the Supreme Court, there has also been a ban on audio recording from within the chambers. In the past, audio recordings have been doctored and then misreported by news outlets, leading to headaches. That has slackened some, and audio recordings are now available after the verdict has been announced. Sometimes they will release same-day audio for high-profile cases, but this is extremely rare.

Notably, one can still get same-day written transcripts of the oral arguments and opinion announcements; however, these do not take things like tone and delivery into consideration. The Justices have learned to choose their words wisely so that they do not come across wrong on paper.

Sotomayor discussed the problems with all reporting to The New York Times, saying:

I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.

It obviously took a while to get to the point where audio recordings are allowed as well, and it might seem like they’re pretty much the same thing as video recordings; however, they’re probably less likely to be mass-distributed on platforms such as news shows, and therefore, less likely to be misconstrued.

Performance Issues

There are also concerns that if cameras are brought into the Supreme Court, the advocates will pander to them. Instead of focusing on the merit of their arguments, they will try to be more convincing and flashy. That being said, that worry gives very little credit to the attorneys arguing the cases–their arguments would still be what the Supreme Court decided on, so there would be little value in creating a performance for outside audiences.

Conclusion

Putting cameras in the Supreme Court is going to take some work from everyone involved. It isn’t going to be something that can have a seamless transition and just happen overnight. Instead, it is something that journalists, viewers, lawyers, and justices will have to come to terms with, and change their behaviors accordingly.

Whatever the change is, there needs to be more transparency in a system that is broken. The Coalition for Court Transparency claims:

Currently, to attend Supreme Court hearings, individuals must stand in line outside the building and wait to be ushered in. There are roughly 400 seats in the courtroom, only a fraction of which are available to the public. That means countless Americans hoping to view the arguments are unable to, especially in cases that have broad public interest, such as the marriage equality, Obamacare, voting rights, and affirmative action cases in recent terms. For these types of cases, interested citizens must often line up hours, if not days, in advance of the arguments. In some instances they have to compete with “line-standers” whose employers have been paid thousands of dollars to hold a powerful or wealthy person’s place in line.

Stay tuned for the next few months as the changes are sure to come quickly.

Resources

Primary

Oyez Project: Latest 

Supreme Court: Transcripts and Recordings of Oral Arguments

Additional 

BYU Law Review: The Monster in the Courtroom

Slate: Amicus: Cameras in the Courtroom

Open SCOTUS: Coalition Letter

Reporters Committee for Freedom of the Press: Holding Out Against Cameras at the Supreme Court

National Constitution Center: Justices’ Comments Cast More Doubts on Supreme Court Cameras 

USA Today: Justices Rock it on the Road, If You Can Find Them

Blaze: New Push to Get Video Cameras in Supreme Court

NPR: Once Under Wraps, Supreme Court Audio Trove Now Online

Slate: Punch and Judge Judy

Tampa Bay Times: Sotomayor No Longer Favors Video Cameras at Supreme Court

CNN: Supreme Court Agrees to Take on Same-Sex Marriage Issue

Slate: Supreme Court Justices Are Not Really Judges

Daily Signal: Public Opinion and the Supreme Court

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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The Supreme Court ruled 6-2 for an affirmative action ban on April 22 that was enacted by a Michigan constitutional amendment. Sonia Sotomayor, one of the two Justices who voted against the amendment, delivered a scathing dissent – 58 pages long – criticizing her colleagues’ affirmative ruling.

“As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” – Justice Sotomayor

Seven other states have similar constitutional amendments that ban the use of affirmative action in the higher education enrollment process. This ruling is particularly pertinent as there is evidence that minorities as a percentage of the study body is dropping at n colleges that have executed these affirmative action bans.

Sotomayor’s dissent was not met kindly, however, as Chief Justice Roberts rebuked her on the bench.

“To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality … People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.” – Chief Justice Roberts

The main reason as to why the Court ruled in affirmation of Michigan’s ban on affirmative action was based on a disagreement over whether the courts had the correct jurisdiction to decide matters regarding these cases, and not by voters themselves choosing directly.

Considering the earlier ruling striking down Sections Two and Three of the Voting Rights Act, people may start to wonder how this Court is taking up issues that are racially controversial. Critics of the ruling say that the Bench is attempting to skirt history by ignoring continuing trends of racism, while supporters of the rulings say that time has simply passed by when racism was at its peak in America. Watching the Supreme Court is important at this point in time, as the country changes demographically in the coming years.

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Dennis Futoryan (@dfutoryan) is an undergrad with an eye on a bright future in the federal government. Living in New York, he seeks to understand how to solve the problematic issues plaguing Gothamites, as well as educating the youngest generations on the most important issues of the day.

Featured image courtesy of [Tony Esopi via Wikipedia]

Dennis Futoryan

Dennis Futoryan is a 23-year old New York Law School student who has his sights set on constitutional and public interest law. Whenever he gets a chance to breathe from his law school work, Dennis can be found scouring social media and examining current events to educate others about what’s going on in our world. Contact Dennis at staff@LawStreetMedia.com.

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Attention all young lawyers: do you have any ambitions of making it to the bench? Or maybe another plum political position? Is that the kind of career you want? If you answered no to those questions, you can stop reading here. You can go on with your day, and you don’t need to heed the warning I’m about to give.

But if you answered yes, there’s something you really need to consider. Watch everything you do closely, because as we learned in the Senate this week, participating in a single controversial case has the potential to invalidate your entire career.

Debo Adegbile, a well respected Civil Rights lawyer who was nominated by President Barack Obama to head the Department of Justice’s Civil Rights Division, was rejected by the Senate yesterday. His nomination was blocked through a procedural vote that fell 52-47. The reason given for his rejection was the fact that he was involved in an appeal to get Mumia Abu-Jamal, a man who was found guilty of murdering a cop in Philadelphia, off death row. That involvement was enough to render the rest of his qualifications utterly irrelevant.

Here are the top 5 reasons why Debo Adegbile’s rejection by the Senate was dead wrong.

5. His involvement in the Abu-Jamal case was pretty minor. 

Debo Adegbile worked for the NAACP’s Legal Defense and Education Fund — a widely respected institution. The NAACP routinely takes on controversial cases. This should come as a surprise to no one.

The Abu-Jamal case has been contentious for years, receiving both national and international condemnation and applause. Abu-Jamal’s supporters have alleged that the trial was marred by flawed jury selection and instruction and lack of impartiality.

Now the NAACP, not Adegbile himself, but the institution for which he worked, became involved in the appeals process in the Abu-Jamal case in 2006, roughly 25 years after Abu-Jamal’s original conviction. Adegbile didn’t become involved in the case until 2008, when he signed onto a brief. When the NAACP became more involved in 2011, eventually working to get Abu-Jamal’s death sentence overturned in favor of life in prison, Adegbile wasn’t even on the defense team. He was barely involved with this case.

4. Adegbile was doing his job.

Let’s also consider what the NAACP was arguing, what the brief that Adegbile was tangentially involved with consisted of. They were arguing that Abu-Jamal did not receive due process of law — not that he was innocent. They didn’t argue that the conviction was wrong, they argued that the sentencing was wrong. As Slate writer Dahlia Lithwick so perfectly put it, “What he did do — which fits pretty readily within the historic mandate of the NAACP’s Legal Defense Fund — was to help ensure that the American criminal justice system, and especially the death penalty, is administered fairly and constitutionally.” By being even slightly involved in this case, Adegbile was doing the job that he agreed to do at a respected institution with a worthy cause.

Furthermore, Adegbile was doing his job as a lawyer. Attorneys pledge to uphold the constitution, to make sure that clients get fair treatment, and have a legal obligation to do so. Lawyers, and their clients, have the right, if not the obligation, to question cases in which there is a possible loss of liberty and legal protections.

I’m not saying that any lawyer should get a free pass for cases they take, or that every lawyer would be qualified for the position for which Adegbile was nominated. But it’s pretty clear that Adegbile was doing his job, for a respected institution, with a valid legal argument, on a case which eventually was found to have been unfair to Abu-Jamal. And he’s now being punished for that.

3. Every lawyer has some controversial cases. 

I am pretty sure it’s impossible to be a prominent lawyer in the United States without at some point being involved with a controversial case. In fact, prominent cases are often the catalyst for becoming a prominent lawyer. So let’s check out arguably the most prominent legal figure in the United States right now: Chief Justice of the Supreme Court John G. Roberts.

When Roberts was in private practice, he helped represent a convicted killer in Florida named John Ferguson, who killed eight people. He put in 25 pro bono hours for his work on the case, and it never came up in his confirmation hearings, and rightly so.

And Roberts isn’t the only one. Controversial cases abound, and if lawyers do their due diligence, and make appropriate legal arguments, such cases shouldn’t hamstring them and prevent them from ever serving in a political position.

2. The vote was a transparent political move. 

With the way that Congress has been behaving recently, this is almost a useless point, but I’m going to make it anyway. Adegbile lost 52-47. Now obviously all the Republicans voted against him — but so did eight Democrats: Harry Reid (Nev.), Chris Coons (Del.), Bob Casey (Pa.), Mark Pryor (Ark.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Joe Donnelly (Ind.) and John Walsh (Mont.).

Of those eight, only three are up for reelection in 2014. But all eight of them live in relatively purple or red states. The only exception would be Coons, but it’s important to remember that his state falls within Philadelphia’s media market, where Abu-Jamal’s crime occurred. The Democrats who voted against Adegbile may have done so from their consciences, that really may be the case. But if they didn’t, and if this was a political move, they deserve ire.

And it’s looking like that might be true. A senior aide to one of the Senators who voted against Adegbile anonymously stated, “It’s a vote you didn’t have to take. It’s a 30-second ad that writes itself.”

1. The message this vote sends to lawyers. 

The failed nomination of Adegbile for, as stated by the dissidents, his involvement in the Abu-Jamal case says a lot. If he had been rejected based on his qualifications, fine. That wouldn’t bother me in the slightest. But let’s be very clear about this: he was rejected because he did his job as a lawyer.

Watch this video of Iowa Senator Tom Harkin exclaiming his disgust over the decision. It’s long, but it’s worth it, because it sums up this entire issue near perfectly.

What does that mean for our young ambitious attorneys, our best and brightest, our potential nominees in 20 years? Well, this rejection sends them the message to watch their backs. To stop and think before they take every single case. It requires them to anticipate the future. And it tells them not to take chances, not to fight for the cases they’re passionate about. It tells them to stop taking the actions that make our legal system so great. That’s what it says. So future lawyers, current lawyers, potential lawyers: heed my warning. Watch what you do, or pay a price in the future.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Leadership Conference on Civil and Human Rights via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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