Supreme Court nominee Elena Kagan artfully dodged some of the Senate's tough questions at her confirmation hearings last week, but she was unequivocally enthusiastic when asked her view on televising Supreme Court arguments. "It would be a terrific thing to have cameras in the courtroom," she declared.
Kagan's answer was as welcome as it was surprising. Supreme Court justices have long opposed the idea of broadcasting oral arguments — the hour-long sessions in which attorneys present their cases before the nine justices. Not only have the justices barred cameras from the courtroom, they have also delayed release of audiotapes of most oral arguments for months, ensuring that people seldom hear them while they are most relevant. Oral arguments provide one of the few real opportunities for the public to observe the court at work, and yet the justices continue to limit public access to just a handful of lucky observers who line up in time to get a coveted seat in the small courtroom.
True, the Supreme Court has moved a bit in the right direction. Over the last decade, in a handful of important cases, it has released audio of some arguments for immediate broadcast. For example, in Bush vs. Gore, the court immediately released the audio of oral arguments. It also did so in cases challenging the constitutionality of affirmative action programs, the ban on so-called partial-birth abortions and the detention of prisoners at Guantanamo Bay.
But even that trend of transparency has died out this past term, when the court repeatedly denied the media's requests to broadcast the arguments in such major cases as McDonald vs. Chicago (in which the court struck down the city of Chicago's ban on handguns as a violation of the 2nd Amendment) and Sullivan vs. Florida (in which the court struck down life sentences for minors).
Televising oral arguments, or at the very least immediately releasing audio, is long overdue. The Supreme Court sits atop the third branch of government. The nine justices decide vital questions about the meaning of the Constitution and federal statutes. Their decisions can alter the very structure of our government, move stock markets and change the nature of our relationships at work and even in the home. The American people — indeed, the citizens of the world — have a right to hear the justices debate the merits of each case with the advocates for the parties.
Yes, there are risks to televising Supreme Court arguments. Some advocates, perhaps even some justices, will occasionally speak in sound bites at the expense of thoughtful analysis, thereby changing the nature of the arguments themselves. But the opportunities for pandering are limited. After all, a Supreme Court argument is not a trial — there are no witnesses to cross-examine, no evidence to introduce, and many cases turn on narrow, technical questions about terms in statutes and regulations that would be hard for even the most manipulative reporter to exploit.
The benefits of broadcasting oral arguments far outweigh the costs. Oral arguments can educate the public about the role of the court in our government, as well as about the substantive issues at the heart of each case. They give the listener an opportunity to hear the justices' reactions to the arguments, and often reveal the likely outcome of the case. A transcript is no substitute for hearing the timbre of a justice's voice, which can reveal the skepticism, sarcasm or sympathy with which a question is asked.
Moreover, there is ample precedent for broadcasting such proceedings. New Hampshire, Maryland and Texas are just a few of the many states that already do so. The Supreme Court of Canada has allowed regular broadcasts of its hearings since 1997 without any noticeable damage to that institution.
At the very least, the justices should immediately release audio of proceedings, which would carry much of the benefits to the public with very little risk. And release of audio alone would allow the justices to retain their relative anonymity, which undoubtedly is one reason for their antipathy to cameras in their courtroom.
Perhaps the best new reason to broadcast the Supreme Court's oral arguments is the imminent addition of Kagan to that institution. The many newspaper articles about her academic and professional accomplishments failed to capture her charm and charisma. At her (televised) confirmation hearings, Kagan shone — she revealed herself to be smart, thoughtful and downright funny. The public should not be deprived of the opportunity to see more of her once she ascends to the bench.
Amanda Frost is a professor of law at American University Washington College of Law.