In his 2014 end-of-the-year report on the federal judiciary, Chief Justice John G. Roberts Jr. wrote that courts “have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.” Very true, but in one respect the court on which Roberts serves has been dramatically more resistant to change than others.
When the U.S. 9th Circuit Court of Appeals heard oral arguments on the constitutionality of Proposition 8, California's ban on same-sex marriage, the proceedings were videotaped for broadcast. But, as of now, there will be no TV cameras at the Supreme Court this year when the justices hear arguments on whether the Constitution requires states to issue marriage licenses to same-sex couples.
That's because no oral arguments in the nation's highest court are televised, thanks to a cameraphobia that has infected recently appointed justices as well as longer-serving ones. Nevertheless, the Coalition for Court Transparency, representing several journalism groups, has written to Roberts asking that the court make an exception for the marriage arguments.
“The country, if not the whole world, is watching to see what will happen,” the letter says. “And yet they cannot truly be watching, because live audio-visual coverage of Supreme Court proceedings is still barred. And while the cases affect millions of people's everyday lives, only those present in the courtroom that day will get to see and hear the oral arguments as they happen.”
This page long has supported televising all arguments in the court. We find utterly unpersuasive the claim, recently recycled by Justices Elena Kagan and Sonia Sotomayor, that cameras in the courtroom would impel lawyers and justices to grandstand. Histrionics are mostly wasted in appellate courts, where there is no jury, and lawyers ham it up at the risk of alienating the judges who hold their clients' fate in their hands.
The other claim is that broadcasters will air sensationalized sound bites. But that already happens when the court releases same-day audio from high-profile cases. For example, radio and TV reports on arguments about the constitutionality of the Affordable Care Act endlessly recycled Justice Antonin Scalia's comparison of a health insurance mandate to a law requiring people to buy broccoli. (Apparently justices can grandstand without the prod of a camera.)
Ideally the justices would overcome their institutional inertia and allow TV cameras at all oral arguments. But if they won't go that far, they should at least televise the marriage arguments, either live (as the coalition requests) or after a slight delay. This would not only offer Americans an up-close view of a historic hearing but also would test the justices' assumption that cameras would change the nature of their work.