« Ind. Gov't. - What does “reasonable particularity” mean as a requirement for records requests under the Access to Public Records Act? | Main | Ind. Decisions - More on: 7th Circuit denies rehearing en banc petition in gun case »

Thursday, March 14, 2013

Courts - Cameras at SCOTUS oral arguments suddenly look much less likely than ever

Stephanie Condon reports today for CBS News in a story that begins:

Two Supreme Court justices today expressed concern that if cameras were present during oral arguments in Supreme Court cases, the justices may feel pressured to edit what they say.

"You think it won't affect you, your questioning," Justice Stephen Breyer said today during a hearing of a House Appropriations Committee subpanel. However, he continued, "the first time you see on prime time television somebody taking a picture of you and really using it in a way that you think is completely unfair... in order to caricature [your position]... the first time you see that, you will watch a lot more carefully what you say."

Justice Anthony Kennedy agreed, adding that he wouldn't want that "insidious dynamic" in the courtroom.

The justices were on Capitol Hill today to testify before the Financial Services and General Government Appropriations Subcommittee about their annual budget. Rep. Mike Quigley, D-Ill., asked the justices about cameras in the courtroom, which has been a matter of debate for years.

More from the long story:
Breyer said today he would have to consider more fact-based evidence on the issue, such as studies on the impact of cameras in the courtroom in California, or its role in shaping public opinion. "I know that's a bore, but that's where I am at the moment," he said.

However, that fact-based evidence has long existed, Bruce Collins, corporate vice president and general counsel for C-SPAN, pointed out to CBSNews.com.

In 1994, with approval from then-Supreme Court Chief Justice William Rehnquist, the Federal Judicial Center published a report called Electronic Media Coverage of Federal Civil Proceedings. The report was based on a years-long study on the use of televised and still camera coverage in six trial courts and two appellate courts. The use of cameras, the study found, "didn't have any harmful effect on the administration of justice," Collins said.

"That means they didn't see any lawyers grandstanding, they didn't see witness intimidation, they didn't see jury intimidation," he continued. The report's first listed recommendation was to authorize the use of cameras in federal courts of appeals and district courts nationwide.

On top of that, Collins noted, nearly every state in the country allows court proceedings, including criminal, civil and appellate proceedings, to be televised.

"If Justice Breyer says he wants to have studies -- OK, let's do it again," Collins said. "But why don't we first read this report from 1994 and then talk to the state judges?... We've got a couple decades of experience with how the administration of justice is affected by televising courts, and basically it's a non-story."

Tal Kopan has a story on Politico:
Rep. Mike Quigley (D-Ill.) took his time during the House Appropriations Financial Services and General Government Subcommittee hearing to question the justices on why the Supreme Court opposes the introduction of cameras in that court.

“We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give,” Kennedy said, saying he believed the majority of his colleagues felt the same way.

He and Breyer both expressed concern that cameras present during oral arguments would fundamentally change the way justices operate.

“We feel, number one, that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because were on television. I just don’t want that insidious dynamic to come between me and my colleagues,” Kennedy said.

“In all my life, I can’t imagine the Supreme Court acting in a way other than they normally would, whether there were cameras or not, but I respect your point,” Quigley said.

Breyer said that while he very much likes the idea of a camera for certain oral arguments -- turning to Kennedy and asking if he remembers the Arkansas case on term limits (presumably U.S. Term Limits, Inc. v. Thornton) and how excellent arguments were in that “difficult” case --, he is at this moment against bringing in cameras.

“We’re a very conservative institution … and the last thing any of us would like to do is to make it worse as an institution,” Breyer said. “People who you would find surprising, I won’t say who they are, they come to me and they say, ‘Be careful, you think it won’t affect your questions. … If you see on television a person taking a picture of you and really mischaracterizing [what you say], … the first time you see that, the next day you’ll watch a lot more carefully what you say. Now that’s what’s worrying me.”

Breyer said he wants to see more studies of the impact of courtroom cameras (“not paid for by the press”), for example in California and really analyze the issue before he would feel ready to allow them in.

ILB: Of course Justices Breyer and Kennedy has never been in favor of televising oral arguments. But newer Justices Kagan and Sotomeyer did not rule out the idea, at least before they were named to the Court. Adam Liptak reported Feb. 18th in his NYT Sidebar column:
WASHINGTON — Justice Sonia Sotomayor, populist, revealed a paternalistic streak this month, announcing that she had rethought her enthusiasm for video coverage of Supreme Court arguments.

At her confirmation hearings in 2009, she said she was in favor of letting citizens see their government at work. “I have had positive experiences with cameras,” she said. “When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.

“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.” * * *

The court’s newest member, Justice Elena Kagan, has also done an about-face. At her confirmation hearings in 2010, she said video coverage “would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” Two years later, she said she now had “a few worries, including that people might play to the camera” and that the coverage could be misused.

Posted by Marcia Oddi on March 14, 2013 07:21 PM
Posted to Courts in general