Picture's Not Encouraging for Cameras in High Court

(May 11) -- Supreme Court nominee Elena Kagan may have raved about the benefits of allowing cameras into the high court, but that day likely is still far off, according to legal scholars.

Speaking at a judicial conference last year, Kagan said that "if cameras were in the courtroom, the American people would see an amazing and extraordinary event. ... There is a debate of really extraordinary intellectual depth and richness."

The issue of courtroom cameras itself has sparked rich debate. While the House of Representatives has allowed camera coverage of the floor debates since 1979 and the Senate since 1986, the Supreme Court -- where quill pens still sit on desks -- is another story.

For a few high-profile cases each term, the justices have begun making audio recordings of oral arguments available the same day. But most of the news of oral arguments is shouldered by reporters -- some of whom must sit behind gigantic marble columns in the stately chamber -- who aren't allowed so much as a tape recorder.

"We can't think of any reason the Supreme Court ... shouldn't be as open with its public business as the Congress and the presidency," said Bruce Collins, general counsel and vice president of C-SPAN, which televises the House and Senate proceedings right down to the tedious quorum calls.

But the justices themselves can apparently think of lots of reasons.

"Not a chance, because we don't want to become entertainment," Justice Antonin Scalia said in a 2005 CNBC interview. "I think there's something sick about making entertainment out of other people's legal problems."

Justice Anthony Kennedy also has spoken out strongly against the idea, saying it would ruin the collegial dynamic of the nine-member court. "Please don't introduce into the dynamic that I have with my colleagues the insidious temptation to think that one of my colleagues is trying to get a sound bite for the television," he told the Senate Judiciary Committee in 2007.

Yet Collins said the lack of cameras is an "anachronism," since the oral arguments already are open to the public. "Democracy depends on an informed public," he said. "The Supreme Court makes very, very significant decisions that affect everyone's lives."

The House and Senate have repeatedly considered pressing the court to open its arguments to cameras, and the Senate Judiciary Committee recently passed a resolution to that effect. But actual legislation has never come close to passing -- and if it did, it would raise the odd prospect of the Supreme Court hearing a case based on the law.

According to a C-SPAN poll last fall, nearly two-thirds of the public would like to see the court televise its hearings. But associate law professor Lisa McElroy of Drexel University said it may take a new generation of justices before that happens.

Some justices, like Sonia Sotomayor, have said they are open to the idea and have experience with the concept from other courts. Still, a significant portion of the current justices worry about disruption from lawyers playing to the cameras, McElroy said.

James S. Todd, a retired University of Arizona political science professor who has followed the court closely, agreed that no cameras will be allowed soon. Having spent time with former Justices William Rehnquist and Sandra Day O'Connor, Todd said the cameras would ruin the anonymity they enjoy. He said he took O'Connor birding and they weren't recognized; Rehnquist could drive to a suburban Virginia grocery in his station wagon without being spotted, at least until President Clinton's impeachment trial.

Justice Clarence Thomas has said that public recognition is a factor, and it plays into the justices' security.

"Given the nastiness of American politics, ... I don't think justices want their faces out there," Todd said.

Even if cameras were allowed, they wouldn't capture most of the court's important work, said Gerson Moreno-Riano, head of the government department at Regent University in Virginia Beach, Va. Oral arguments for each case are public, but 80 percent or more of what the court does, such as writing opinions and forming majorities, is done in secret.

Televising the oral arguments could have a " 'Judge Judy' effect," Moreno-Riano added, noting that popular opinion could be manipulated and used to undermine the court.

Collins is adamant that letting the public see the proceedings without anyone filtering the information would be helpful. Still, he's not getting his hopes up about Kagan's positive comments on the idea. Many justices have said nice things about cameras in the courts but have been less enthusiastic once they don their black robes.

"This is not a 5-4 decision. It's an institutional and collegial decision. It may have to be a 9-0 vote," Collins said.