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The Pandemic Brought New Levels of Transparency to the Supreme Court. Why End It?

Real-time audio broadcasts of oral arguments have been a tremendous boon to our civic life and should be made permanent.

Supreme Court nominee Kentanji Brown Jackson.
Anna Moneymaker/Getty Images
Court observers are keenly interested in whether Supreme Court nominee Ketanji Brown Jackson will support the practice of real-time audio broadcasts of oral arguments—or perhaps go even further and endorse cameras.

One of the many questions that senators ask every Supreme Court nominee is whether they would support cameras in the courtroom. So far, none of them have said yes outright, and some who had hinted at support for it changed their minds after getting the job. David Souter famously told lawmakers in 1996 that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Judge Ketanji Brown Jackson will likely face similar questions when her confirmation hearings begin later this month. It will be a rare opportunity to press a would-be justice about her views on public access to the high court, and it could not come at a better moment. The Supreme Court has not yet said if it will continue its Covid-related transparency measures after the pandemic subsides. If it decides to discontinue them, it would be a tragedy—a missed opportunity for the justices, the American public, and the relationship between them.

Earlier this week, a group of prominent Supreme Court lawyers and scholars signed an open letter urging the justices to make the court’s current live-audio policy permanent. “There have seemed to be almost no technological difficulties or issues with the media pools from the livestreaming, and in our minds, it hasn’t been disadvantageous that arguments now run a little longer on average than in years past,” they argued. “Critically, decorum has been maintained throughout.”

The Supreme Court has never allowed its oral arguments to be filmed. Photography is also forbidden. Except for the work of sketch artists like Art Lien, there is no authorized visual record of any Supreme Court proceedings. The court’s security personnel require visitors and journalists to remove any electronic devices before attending a session and place them in a locker. Breaches are exceptionally rare. The only two known photographs date from the 1930s, taken with cameras hidden in broken-arm slings and handbags. In 2013, a campaign-finance-reform group secretly filmed inside the chamber while one of its members interrupted arguments in a patent case, later posting the footage on YouTube.

As I noted last November, this judicial technophobia means that most Americans’ only opportunity to hear oral arguments as they happen is by physically attending them in the nation’s capital. That isn’t feasible for most Americans. Oral arguments aren’t necessarily the most important part of the court’s work. The justices’ most important work takes place behind closed doors in its internal conferences and through back-and-forth drafts of opinions. But oral arguments are the only real way that Americans can actually see the court in action, making them a valuable part of the institution’s legitimacy and accountability.

The justices’ objections to cameras are both practical and philosophical. Some of them have argued that televising the oral arguments would reduce their utility for the justices and make them more performative in nature. They have often drawn comparisons with the introduction of cameras in Congress in the 1970s, implicitly linking their arrival to that institution’s decline. Antonin Scalia claimed that it would “mis-educate” the public on the court’s work by allowing people to take it out of context. Others have noted that it could pose a security risk. While the justices’ exact security arrangements are not public, they are not usually accompanied by large entourages like other high-ranking federal officials, relying instead on their relative anonymity to move around in the D.C. area without difficulty.

Lawmakers have occasionally proposed requiring cameras in the Supreme Court through legislation. But the justices have also raised separation-of-powers concerns on that front. “We’ve always taken the position in decided cases that it’s not for the court to tell Congress how to conduct its proceedings,” then-Justice Anthony Kennedy told lawmakers in 2006. “And we feel very strongly that we have an intimate knowledge of the dynamics and the needs of the court. And we think that proposals which would mandate [and] direct television in our court in every proceeding [are] inconsistent with that deference, that etiquette, that should apply between the branches.”

Audio recordings address many of these concerns. While the court began recording its oral arguments in 1955, that audio hasn’t always been easy to obtain. It initially began releasing each term’s audio recordings at the start of the next term, making them more useful for historians and law professors than for the public or the press. In 2010, the court started releasing them on its website on Friday after they were recorded, which often came three or four days later. Only in exceedingly rare cases of high public interest—the marriage-equality cases in 2015, for example, and the travel-ban cases in 2018—would the court deign to let Americans hear its arguments on the same day that they took place.

It took a pandemic to get the court to do what it had refused for decades: provide real-time broadcasts of the Supreme Court’s oral arguments. It came in the form of live audio feeds, which were dutifully relayed by C-SPAN and other news outlets. I’ve written before on the virtues of this change, as well as other procedural tweaks made around the same time. The court’s statements, however, have implied that the live-audio feeds exist because the Supreme Court building is still closed to the public. When the building reopens, it is possible that the court will discontinue the feeds since public access will technically be restored, albeit in a far diminished form. Many observers and advocates have lamented that possibility.

“Since then, scores of law professors have used the streams as teaching tools of appellate advocacy,” the lawyers and academics said in their open letter. “Hundreds of media outlets have linked to them so listeners and viewers could hear directly from the justices, unfiltered and in real time, about the issues the Court was grappling with. And tens of thousands of Americans have come to understand the seriousness and the care with which you and your colleagues treat each case and each advocate who comes before the Court.”

Some have urged the court to go even further. Gabe Roth, the executive director of court-reform group Fix the Court, noted that Supreme Court nominees have traditionally declined to say outright whether they would support live video broadcasts of Supreme Court arguments. “We can call this the ‘Cameras Corollary,’ to the so-called ‘Ginsburg Rule,’ where a nominee offers ‘no forecasts, no hints’ about how he or she views a judicial issue before ascending to the high court,” Roth wrote in an op-ed on SCOTUSblog earlier this week. Hopefully, this time, Jackson chooses to speak out differently on the topic—or at least throw her support behind keeping the live-audio policy for all future cases.