Former FBI Director James B. Comey’s open testimony before the Senate Intelligence Committee last Thursday, broadcast live on national television, reflected well on our democracy. An estimated 19.5 million people watched our government at work.
On the same day, Supreme Court Justice Stephen G. Breyer told an audience of lawyers, law professors and students that he was not ready to allow the public to watch Supreme Court proceedings — because, he said, cameras might change the nature of oral arguments. Breyer’s views reflect the opinion of all the Supreme Court justices, with the possible exception of Justice Neil M. Gorsuch, who said during his confirmation hearings in March that he was “open” to the possibility of cameras in the courtroom.
The Supreme Court does not currently allow any of its public oral arguments or decision announcements to be televised, live-streamed, videotaped or photographed. This blackout deprives the American people of something that is rightfully theirs: the ability to observe government officials perform important duties that only a select few can witness in person.
There may have been a period when cameras in courtrooms presented unknown risks, but that time is long past. Fifty state supreme courts already allow them, including the Texas Supreme Court, which live-streams and archives all of its oral arguments.
Texas Justice Don Willett, who is on President Trump’s list of potential Supreme Court nominees, recently told me: “My court has been webcasting for a decade. No hiccups. No regrets. No going back. We inhabit a hyper-partisan age, and there's enormous civic-education upside in We the People seeing their judges tackle fateful issues with thoughtfulness and civility. I wouldn’t presume to lecture the Supreme Court of the United States, but our experience has been overwhelmingly positive.”
The U.S. 9th Circuit Court of Appeals live-streams its arguments, as do other courts of appeals from time to time. Cameras are also allowed in courtrooms in Britain, Canada, Brazil and many other countries. There have been virtually no negative reports or safety issues resulting from this widespread use of cameras in courtrooms.
With its long tradition of overruling unconstitutional state and federal laws, the Supreme Court is the most powerful judicial tribunal in the world. If any court should be televised, it is the Supreme Court. There would be many obvious advantages.
As Justice Willett pointed out, the American people could watch lawyers and judges respectfully debate contentious legal issues. These arguments would set a wonderful example of how public officials can disagree without undue rancor.
Students and teachers of the law in particular should be able to witness the justices’ historic debates over freedom of speech, freedom of religion, abortion and other legal questions. What a shame that no one will ever be able to watch the justices announce their rulings on same-sex marriage and other momentous decisions. Instead, we must rely on the accounts of a few select journalists.
And now there is another compelling reason for the justices to televise their proceedings: The Supreme Court might be hurtling toward a legal showdown with the president. If this happens, the American people should be allowed to watch the landmark case. Citizens might even accept the result more readily if they can observe the arguments and the decision announcement.
There are no strong arguments against televising or live-streaming court proceedings. The justices have said that it could lead to misunderstandings about how the court works and enable journalists to take snippets of arguments out of context. Justice Anthony M. Kennedy even hinted that he’s afraid his colleagues might grandstand. But media distortion of the proceedings is already a possibility, and when there is debate over what happens inside the court now, there is no visual evidence to consult. In any event, the potential minor risks don’t come close to outweighing the certain advantages of transparency.
Some judges have voiced fears that televising court proceedings could make them targets of violence from disappointed litigants or the public at large. But there is no evidence to support this concern. Personal information about every judge is already available to the public. Some of the justices go on television voluntarily to promote their books. I asked Judge Richard Posner of the U.S. 7th Circuit Court of Appeals what he makes of this concern about violence. “As far as I am able to determine, there has never been an incidence of violence resulting from such televising,” he responded. “Yet fear of violence has been a standard excuse for refusing to allow judicial proceedings to be televised. Standard and phony.”
Many of our country’s most important political debates and decisions take place inside the Supreme Court. We should all be allowed to witness what a few hundred lucky citizens and journalists get to see.
Eric J. Segall, a law professor at Georgia State University, is the author of “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges.” Twitter: @espinsegall.