By Kerry L. Erisman, Faculty Member, Legal Studies
We are in the age of 24-hour news cycles and unlimited access to media on the Internet. Turn on your television and we can all watch live coverage of the House of Representatives and the Senate debating important legislation. Many people have watched high-profile criminal court cases in the past including the gavel-to-gavel coverage of the O. J. Simpson murder trial in 1994. The United States Supreme Court is one of the last government institutions which maintains a ban on cameras.
The issue of cameras in the Supreme Court is not new. The first known bill calling for cameras in federal courts was introduced in the House of Representatives in 1937. There have also been pilot camera programs in federal courts from 1991 to 1994 and again from 2011 to 2015. The programs placed cameras in select federal courtrooms to study the effects of such technology; the reviews were mixed. As a result, cameras are permitted in certain circumstances today in two federal circuit courts and three federal district courts.
Federal Rule of Criminal Procedure 53
Federal Rule of Criminal Procedure 53, entitled Courtroom Photographing and Broadcasting Prohibited, states that, “[e]xcept as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” This rule, of course, only applies to federal courts. State courts have permitted cameras in their courtrooms since the late 1970s.
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Cameras in State Courtrooms
One of the first state criminal trials to permit cameras in the courtroom was the Ted Bundy murder trial in Florida. While the defendant “played” to the camera at times, overall its presence did not jeopardize the right to a fair trial. It allowed the public to observe the trial of a mass murderer who wreaked havoc during his killing sprees. Today, all 50 states permit some television access in their courtrooms.
Pros of Having Cameras in the United States Supreme Court
Criminal defendants have the right to a “public trial,” according to the Sixth Amendment of the United States Constitution. A public trial ensures transparency and fairness in the process. It allows the public to see how justice is carried out, which gives the public confidence in the system. In fact, the Supreme Court recognized this principle more than 40 years ago, writing that “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
Because the Supreme Court is the highest court in the land, it is imperative that the public has the ability to observe oral arguments.
Cameras in the Supreme Court would allow the public to see how justice is carried out, but more importantly, it would strengthen public confidence in the judicial system.
Typically, the only time the public sees a Supreme Court justice is during the televised Senate confirmation hearings, which amount mostly to political grandstanding by the senators playing to the cameras. The nominees are often noncommittal in their answers. It is important for the public to see Supreme Court Justices in action during oral arguments and when announcing its opinions so Americans can see that politics does not drive the Court.
Arguments Against Having Cameras in the Supreme Court
One argument against having cameras in the Supreme Court is that oral arguments will become a media circus. Opponents argue that attorneys will grandstand in front of the cameras, denigrating the seriousness of the oral arguments, and providing incentive for the arguments to become politicized. Additionally, as the late Justice Antonin Scalia insisted in an interview with C-Span, placing cameras in the Supreme Court would “miseducate” the public because they would only see 30 second soundbites on news broadcasts instead of watching the entire oral arguments.
In reality, there is little danger posed by any of these positions. During Supreme Court oral arguments, there are no criminal defendants sitting at counsel’s table. There are no witnesses being questioned or physical evidence being paraded around the courtroom.
Instead, the arguing attorney stands behind a lectern and directs all argument to the nine Supreme Court Justices. While trial advocacy is an art form with some theatrics involved, oral arguments at appellate courts are quite different. As the attorneys argue their client’s position, they are questioned by the Supreme Court Justices, at times creating a back-and-forth dialogue. At all times, however, the proceedings are controlled by the Court and the Chief Justice.
The Canadian Supreme Court has allowed cameras in its courtroom for more than 30 years. According to retired Canadian Supreme Court Chief Justice Beverly McLachin, who served on the Court for more than 28 years, the justices originally had concerns about cameras in the courtroom. It turned out, however, according to McLachin, that “nobody is out there trying to put on a performance.” As for Justice Scalia’s concern, cameras would be no different than how news networks take an oral argument transcript and pull out short segments as part of its broadcast reportage.
It Is Time for Cameras in the United States Supreme Court
Before Covid-19, the United States Supreme Court building was open to the public. Visitors could tour parts of the building and observe oral arguments in the courtroom. Oral arguments were normally open to the public, but seating is extremely limited and on a first-come, first-seated basis. A limited number of people may observe the entire oral arguments, while most get to observe a brief three-minute snippet of the 30 -minute arguments by both sides.
Since the pandemic broke out a year ago , the Supreme Court has been closed to the public and oral arguments have been conducted via teleconference. In an unprecedented move in May of 2020, the Supreme Court announced that it would permit a live audio feed of the arguments for the media and public. While audio of oral arguments is typically released several days afterward, this is the first time that live audio was permitted.
The live audio feeds were a success and no issues were raised. The media and public were able to listen to the oral arguments as they occurred. Given the success of the live feeds, it is now time for the Supreme Court to take the next step and place cameras in the courtroom. They could be permanently set up to show only the arguing attorneys and Supreme Court justices.
Cameras will not take away from the magnitude of the Supreme Court or its judicial mission as the highest court in the land. Quite the opposite, cameras will allow the public to observe some of the most important legal issues facing America today, and will instill public confidence in the overall judicial process.