December 5, 2000

High Court Hides From Camera in Bush v. Gore

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When the Supreme Court entertained arguments last Friday that could determine who will be the 43rd president of the United States, it worked virtually in private. Unlike the Florida Supreme Court, which let the sunshine (and television cameras) into the hearing that gave the green light to hand-counted ballots, the highest court in the land convened before just 80 members of the public.

The nine justices of the United States Supreme Court refuse to allow television coverage of their hearings. Reasons given range from protection of their personal privacy to preservation of the Court’s mystique. Chief Justice William Rehnquist told a 1992 judges’ conference that if the justices didn’t look good on camera, “it would lessen to a certain extent some of the mystique and moral authority” of the Court.

Justice Harry Blackmun, author of the Court’s opinion in Roe v. Wade, once passed a group of anti-abortion protestors during his noontime stroll. Unrecognized, he stood and looked on as they railed against the rights protected by the bystander’s most famous decision.

Twenty-three hours before the Supreme Court’s 1989 hearing in Webster v. Reproductive Health Services, which many thought might overturn Roe v. Wade, hopeful spectators began lining up in front of the Supreme Court building to vie for the few public seats. A scalper sold the eleventh place in line for $100.

The Supreme Court has held that there is a right to a public trial. But it is not clear whether a public trial means a televised trial. When a defendant appears in court, there may be valid reasons for excluding a camera, if the publicity could harm his or her constitutional right to a fair trial. But when the Supreme Court hears arguments, there are no witnesses or jurors to be influenced or intimidated by the cameras.

Although Justice Ruth Bader Ginsburg told a group of University of Virginia law students that she generally favors gavel-to-gavel cameras in the courtroom, she didn’t specifically include the Supreme courtroom. She said: “The problem is the dullness of most court proceedings,” adding, “It’s often tedious.”

Justice Antonin Scalia once told an audience condescendingly that “law is a specialized field, fully comprehensible only to the expert.”

Yet millions sat glued to their television sets two weeks ago as the Florida Supreme Court grappled with technical legal issues of statutory construction. The High Court on Friday was faced with deciding whether the Florida Supreme Court violated federal law or the United States Constitution. Public interest in this hearing was overwhelming. It is imperative that the American public, so polarized in this post-election limbo, perceives the ultimate decision-making process as a fair one.

The Supreme Court’s denial of the petition filed by C-Span and CNN to allow cameras to televise Friday’s arguments was a foregone conclusion. As Justice David Souter told a House Appropriations subcommittee in 1996: “The day you see a camera come into our courtroom it’s going to roll over my dead body.”

However, the Court took a small but significant step by allowing an immediate release of an audiotape of the proceedings, which in ordinary circumstances, wouldn’t be released for several months. In 1955, Chief Justice Earl Warren inaugurated the practice of audiotaping oral arguments. But although the tapes were turned over to the National Archives, scholars who checked them out had to sign a lending agreement that they wouldn’t reproduce them. University of California-San Diego political science professor Peter Irons defied the agreement in 1993 and marketed the tapes with a transcript entitled “May It Please the Court.” The Court, furious, threatened “legal remedies” but never followed through with its threat.

Justice Sandra Day O’Connor told conference attendees in Colorado a few years ago: “Eventually we will probably have television. But it probably won’t be for a good while.” How long a while that will be is anyone’s guess. Hopefully, Justice Souter will live to see the day.