As the U.S. Supreme Court continues to debate some of the most important issues of our time, justices remain committed to doing so far removed from the all-seeing eye of television cameras.
Each new term offers fresh hope that justices will at last see the wisdom of giving Americans a seat in the gallery as they consider cases that directly impact our lives.
Every year, justices refuses to even entertain the prospect, declining to follow the lead of states including Illinois, which opened courtroom doors to cameras a few years ago. We are proud to have taken an active role in the pilot program in Rock Island County courts that helped lead to statewide expansion. That's also why we continue to push for cameras in the U.S. Supreme Court chambers.
This year's annual rejection by justices, which came last month during a House hearing, was more disappointing than usual because of the identity of the bearers of bad news.
Both Justice Samuel Alito Jr. and Justice Elena Kagan had been advocates for televising high court proceedings before they joined the court and went over to the dark side. Indeed, Kagan was unequivocal in her earlier views. "It would be a terrific thing to have cameras in the courtroom," she said then.
What changed between now and then? According to a Washington Post report from that House Appropriations Subcommittee on Financial Services and General Government hearing, Alito and Kagan claimed that justices had collectively decided cameras would make attorney grandstanding "irresistible," and undermine "our paramount functions, which is to decide cases in the best possible way."
But justices also have a duty to do so openly, according to the Sixth Amendment, which guarantees public trials. Shouldn't that right extend to the court in which the very laws that govern our judicial system are on trial, one that issues decisions that reach directly into our homes, bedrooms, bodies, schools, courts, churches, workplaces and government?
You have free articles remaining.
Despite the court's wide reach, these former advocates for sunshine and their colleagues have no interest in allowing either live coverage or video recording of their proceedings. So much for increased transparency in the near term.
Or so we thought, until we read a March 15 piece written for Reason.com by Jonathan H. Adler, the Johan Verheij Memorial professor of Law at the Case Western Reserve University School of Law.
In it, Adler suggests that there are other steps the court can take to bring sunshine into the process short of adding cameras to their inner sanctum. "Oral arguments are recorded, and audio recordings are released at the end of each week of arguments," Adler wrote. "There is no reason for this delay. To increase transparency and mollify those seeking (oral) argument video, the court should begin releasing audio recordings of oral argument the same day such arguments occur."
Audio recordings would give listeners the opportunity to at least hear the cases rather than simply reading dry written transcripts that Adler says "often fail to capture the flavor of the argument and, as initially released, are prone to typos or errors. They are useful for researchers, but lack the value of an audio recording, both for journalists covering the court as well as those who want to truly understand how the arguments transpired."
Adler's suggestion isn't groundbreaking since "audio recording has existed for decades without any apparent effect on the quality or sincerity of the arguments made." In addition, he said, same-day recordings already have been released by the court without incident in "cases of extreme public interest," for example, the Trump administration's travel ban and same-sex marriage.
While we do not believe that same-day audio recording is a substitute for cameras in the Supreme Court chambers, it is a solid first step in increasing transparency. Best of all, it is one that justices have no valid reason to refuse.