In another excerpt from his upcoming interview with C-Span’s Brian Lamb, Justice Antonin Scalia gives some insight into the reasons why he and his fellow Justices continue to resist the idea of cameras in the courtroom:
(CBS News) Both Democrats and Republicans have for years urged the Supreme Court to allow cameras into the high court, but Supreme Court Justice Antonin Scalia said that video footage would only serve to “miseducate the American people.”
In an interview with C-SPAN that will air Sunday, Scalia said that watching remarks from the Supreme Court taken out of context would be more damaging than simply reading the remarks out of context in a newspaper.
“Somehow when you see it live, an excerpt pulled out of an entire, when you see it live, it has a much greater impact,” Scalia told C-SPAN founder Brian Lamb. “No, I am sure it will miseducate the American people, not educate.”
The conservative justice said that if the American people watched the court proceedings “gavel to gavel” they would understand “we’re not usually contemplating our navel, ‘should there be a right to this or that, should there be a right to abortion’… That’s not usually what we’re doing. We’re usually dealing with the Internal Revenue Code.”
However, Scalia said that people wouldn’t watch proceedings in their entirety.
“Your outfit would carry it all, to be sure,” Scalia said to the C-SPAN founder, “but what most of the American people would see would be 30-second, 15-second takeouts from our argument, and those takeouts would not be characteristic of what we do. They would be uncharacteristic.”
This issue came up most recently, of course, when Lamb himself wrote the Court asking them to reconsider their policy and allow C-Span to televise the hearings on the Affordable Care Act that had been scheduled for March. That request was, unsurprisingly, denied as all previous such requests have been denied. Instead, in recognition of the extraordinary public interest in the case, they did make the transcripts and recordings from each days hearings available on an expedited basis. On each of those days, the news coverage of the hearings did include excerpts from the audio recordings of the hearings, although only very limited excerpts.
While I did say when the C-Span petition was first made that I thought it was a good idea, I do have to say that I understand Justice Scalia’s position entirely. In our media culture, it’s likely that only limited excerpts of an hour long (or more in the case of the PPACA hearings) hearing would end up being televised and, in the process, it would inevitably be analyzed, criticized, interpreted, and distorted for partisan purposes. The odds that the general public would get an honest assessment of either what the issues before the Court in a given case actually were, or what happened in Court are pretty low, especially when being evaluated by pundits with an obvious political axe to grind. I’d also imagine that the Justices are concerned that video of the proceedings would end up being used in political commercials, which could only serve to diminish the reputation of the Court. By banning cameras in the court, the Justices are able to control the extent to which they are injected into the political fights that the nation is engaged in, and they can avoid the possibility of their words being used to advance political causes that they either don’t agree with or don’t want to be associated with.
Though not mentioned by Scalia, one of the biggest questions that lawyers and judges have dealt with ever since cameras first started showing up in courtrooms was the extent to which the presence of cameras in the court would influence what goes on inside. Would lawyers and judges change the way they act for the benefit of the camera? We can point to at least several high-profile cases where this certainly seems to have been the case. The most famous example, of course, being the O.J. Simpson trial where the defense was clearly playing for the cameras as well as the jury, and where the Judge seemed more concerned with his personal image than keeping control of his courtroom. For the most part, though, the courts that have allowed cameras seem to have done a fairly good job of limiting the extent to which their presence influences the proceedings. Moreover, this danger seems far less apparent at the appellate court level where the cases are concerned with purely legal arguments for the most part, and where the lawyers are far more experienced than trial attorneys and where judges involved are appointed rather than elected and thus not as concerned with their public image. Indeed, several State Supreme Courts and a few U.S. Courts of Appeals have allowed cameras and it seems to have no impact at all. The most notable example of this was the 9th Circuit’s televising of the appellate hearings in the Proposition 8 case.
So are Scalia and the other Justices right about this, or should they be allowing cameras in the Courtroom?
Well, the first point to make about that is that the vast majority of cases that the Court hears are going to be of interest to a very limited number of people. You’re not going to get a large audience for a Patent case, for example, or for something dealing with some odd provision of ERISA. People are going to be interested in the high profile cases, just like they are now, and those are the ones where the video from the hearing would be picked about and excerpted in the manner that Scalia fears. So, for that reason alone, I’m not sure there’s any value in putting cameras in the court if most of the time most people aren’t going to be paying much attention to it. Secondly, putting the Supreme Court on television risks it getting sucked into the same media culture that is already destroying so many other parts of our body politic. Do we really want that to happen to our Judicial System as well? Yes, it would be cool if we could watch the Supreme Court on television, but I’m not at all sure that it’s necessary and I’m perfectly fine if things stay exactly the way they are.
Here’s the video where Scalia discusses this issue:
