Senate Judiciary Subcommittee hearing airs differing viewpoints on televising Supreme Court proceedings; while there is general agreement that televised proceedings would be beneficial, the primary issue is whether the Supreme Court should voluntarily decide when and how to do so or whether Congress should enact legislation; separation of powers issues and a potential constitutuional showdown are noted; newly introduced legislation (S. 1945) would permit a majority of the Court to authorize televised proceedings
Over the past several years, there has been heightened interest and debate to televise federal court proceedings, including oral arguments before the U.S. Supreme Court. Earlier this week, on December 6, 2011, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing entitled “Access to the Court: Televising the Supreme Court.” The Cameras in the Courtroom Act of 2011 was introduced the day before by Senator Dick Durbin (D-IL), and Senators Charles Grassley (R-Iowa) and Dick Durbin (D-Ill.). The measure, S. 1945, would permit televised coverage of "all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.’’.
At the Senate Judiciary Subcommittee hearing on Tuesday, the following witnesses offered divergent perspectives and a wide-range of experience on the issue through their testimony (linked):
- The Honorable Arlen Specter, former U.S. Senator, Attorney at Law, Philadelphia, PA
- Thomas Goldstein, Partner, Goldstein & Russell, P.C., Washington, DC
- The Honorable Mark Cady, Chief Justice, Iowa Supreme Court, Des Moines, IA
- The Honorable Anthony Scirica, Chief Judge, United States Court of Appeals for the Third Circuit, Philadelphia, PA
- Maureen Mahoney, Of Counsel, Latham & Watkins LLP, Washington, DC
- Hearing Webcast
Key Points Raised
Senator Amy Klobuchar (D-MN), who chaired the hearing, emphasized the importance of public court proceedings and the limited access to Supreme Court argument. Democracy should be open. Public access is limited. There are only about 250 seats in the courtroom and many visitors can only remain for about three minutes if there is a line for the argument. A written transcript and audio is not the same as televised proceedings. In her view,“Allowing television cameras in the courtroom would increase public confidence in government and help ensure a well-functioning democracy.” Senator Charles E. Grassley (R-IA), an original sponsor of the legislation, stressed the importance of televised proceedings.
Senator Jeff Sessions (R-AL) expressed the view that deference should be given to the Supreme Court to determine when and how to allow televised proceedings. He suggested that the Supreme Court would not interfere with congressional matters and the Congress should reciprocate. The objectivity and neutrality of the Court is reflected in its decisions. Deference should be given to the Court's reservation to permit televised proceedings.
Former Senator Arlen Specter, who has advocated televised Supreme Court proceedings for about a quarter of a century and was a primary sponsor of legislation during his long tenure in the Senate, underscored the public's right to know what goes on in the Court, not only for print media but eletronic as well. He added that other countries televise the hearings for their Supreme Court, including Canada and the United Kingdom, as well as most state supreme court proceedings.
Attorney Thomas Goldstein, publisher of the SCOTUS blog and who regularly files Supreme Court briefs and argues before the Court, noted that while televised proceedings would be good for the Supreme Court since sunshine increases public confidence, Congress should allow the Court to determine when to televise proceedings. He noted that the Court had taken steps in the direction of open proceedings, including by releasing transcripts of the arguments the same day and releasing the audio of the oral arguments. In his view, televised proceedings are inevitable and the Court will do so voluntarily. Legislation could provoke a constitutional controversy by mandating televised proceedings.
Iowa Supreme Court Chief Justice Mark Cady testified about the positive benefits that have resulted from televised hearings on his court. The judges retain control over the process. Steps have been taken to avoid disrupting the proceedings and to safeguard the rights of litigants. He concluded that the more the public sees about the operation of the court, the more it likes and the deeper the respect for the institution. He presented a short clip of one of the televised Iowa Supreme Court arguments.
Third Circuit Chief Judge Anthony Scirica strongly urged that the Supreme Court be left to decide the issue as a coordinate branch of government. Legislation to televise proceedings could result in a constitutional challenge. It remains important to guard judicial independence and governance. As a matter of comity, the Court should be permitted to determine whether, when and how to televise argument before the Court.
Attorney Maureen Mahoney, who has also argued many times before the Supreme court, presented a strong argument against legislation. She echoed that a constitutional confrontation should be avoided.
Other Recent Efforts to Televise Court Proceedings
The past year has been busy with increased efforts to televise federal court proceedings. In November, Chief Justice John G. Roberts, Jr. was asked to televise the Supreme Court proceedings of the upcoming oral argument on the constitutional challenge to the Patient Protection and Affordable Care Act (health care law), including by Senator Charles E. Grassley (R-IA) and CSPAN. It remains to be seen whether the request to televise this historic argument will be televised.
Pending in the Senate is the Sunshine in the Courtroom Act, which was reported out by the Senate Judiciary Committee earlier in the year. The legislation would “permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides.” See also 157 Cong. Rec. S908-09 (Feb. 17, 2011) (remarks of Sen. Grassley upon introduction). See also Sunshine in the Courtroom Act Sent To Senate (S. 410); Sunshine in the Courtroom Act Reintroduced (S. 410)
A three-year pilot project to assess the impact of cameras in district court courtrooms is presently underway. See Third Branch: Judiciary Approves Pilot Project for Cameras in District Courts; Courtroom Video Camera Pilot Project Advances; Judicial Conference Approves Pilot Project To Evaluate Cameras In The Federal District Courts. Some of the proceedings under the pilot program have been posted on the U.S. Courts website.
Given the importance of this issue, the Federal Evidence Review has established a new Resource Page: Cameras And Electronic Devices In The Federal Courtroom Resource Page, which contains a library of documents including judicial conference policies, judicial guidelines, legislation and hearings, cases and other articles of interest. If you are aware of other information to add to the library, please contact us. Constructive comments are always welcome.