Op-Ed, Christopher Berger – Courtwatching

Courtwatching, by Christopher Berger

One of the issues that seems to come up every time we have a Supreme Court nomination is that of cameras in the courtroom. As of now, the Justices do not allow cameras into their proceedings, merely transcripts and the occasional audio tape, and that seems unlikely to change. But there’s great pressure to bring the cameras in and allow C-SPAN to broadcast the Court’s proceedings. I think this is, bluntly, a very bad notion.

In no small part, I find it problematic because of who wants it. The Senate generally and Senate Democrats in particular seem to have a greater sense of urgency on the subject in these hearings than previous ones, and that’s perturbing. They seem to think there’s something terribly wrong with the Court, a kind of illness. Justice Brandeis called publicity “the best of disinfectants…the most efficient policeman.” This quote has been particularly popular at Kagen’s hearings, and I have to wonder why.

The second main focus of Senate Democrats in these hearings has been judicial modesty, an interest in showing Congress its due deference, which many members of the committee believe the Roberts Court has not, notably in reference to Citizens United. A fair number have gone so far as to call that case a plain example of judicial activism. I cannot help but think these two calls are related. Pardon, honored Senators, but I thought it was the Court’s job to make sure you follow the Constitution, which is precisely what happened in Citizens United.

What concerns me is that the Senate seems to be trying to further politicize the Court. Foundationally, the Court is an apolitical entity. Though it’s fought over by both sides, the Court holds itself above that fray. It’s ability to function as a respected arbiter in political disputes of a frequently quite heated and impassioned nature is predicated upon its political neutrality. Adding cameras to the courtroom will change all that. With the cameras will come the politics, and the fundamental neutrality of the Court will be called into question.

Right now, the Court stands aloof. The views of its members are well known, but it’s rare for the public to hear them debating these views as they question the litigants before them. With the introduction of cameras, that will change. While the proponents of cameras in the courtroom claim that this will allow the American people to come to a deeper and richer understanding of what goes on in the Supreme Court, and while this is undoubtedly correct, that understanding will necessarily be tempered by the lens through which it is offered to the people.

Most of the American people, given the choice, would rather watch Lost than oral arguments. Most will have neither the time nor the inclination to absorb large segments of frequently mind-bendingly complicated legal arguments. This means that the cameras’ contribution to their education about the court will come in clips and bytes, with the effect of skewing, intentionally or not, the performance of individual justices during oral arguments. While not everyone will be cutting tape up to take things out of context, it’s impossible to fit a lengthy clip into the evening news while maintaining ratings, and since what people want to watch is the salacious little bits, that’s what will be broadcast.

Unfortunately, this can be used to bring political pressure on individual members of the Court who seem during oral arguments to be taking one side or another in the views of interested parties, threatening the independence of the judiciary. There’s few threats more effective than having your reputation (and in Washington, social life) destroyed by clips on the evening news with little ability to respond in a public forum. As much as I might enjoy seeing this done to certain members of the Court (while shuddering while it’s done to others), on the whole, this kind of public embarrassment is simply not appropriate. I have no problem of principle with showing politicians to be asses, their careers are made out of being in the public eye, and if they can’t behave in a politically astute fashion in front of a camera, they probably shouldn’t be in politics.

But an ability to perform for the camera has no bearing on qualifications for the Court. I read an article this week claiming that Elena Kagen could be the counterbalance to the “conservative hegemony” of the Court–because her sense of humor will give Scalia’s a run for his money. I honestly couldn’t care less, and I really don’t see what impact one’s sense of humor (or lack thereof) has to do with ones ability to be a good judge. But cameras in the Court would focus attention on such superficial matters because that’s what people will want to watch, and away from the dizzying legal issues before the Court.

I never want to see opinion polls for job approval on Supreme Court Justices. I don’t want to know what the American people think of a given judge personally. Likability has no bearing on the job that judge performs, unlike the other two branches of government. Frankly, as it stands, the Supreme Court is enough of a political football. Cameras in the courtroom would only increase, intensify, and individualize that, and I can find no manner in which this would contribute to the independence of the judiciary.

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