Slate's Jurisprudence: U.S. Supreme Court TV

A bill moving through the U.S. Senate would force the U.S. Supreme Court to televise its oral arguments — a move strongly opposed by the nine justices, who have historically resisted electronic coverage of court proceedings and only recently allowed audio recordings of selected case arguments. Madeleine Brand discusses the reasons behind the proposal with Slate legal analyst Dahlia Lithwick.

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MADELEINE BRAND, host:

Watch out Law and Order, you could be competing with a new TV legal thriller: the Supreme Court, the real U.S. Supreme Court. The Senate Judiciary Committee has passed a bill that would allow television cameras in the court's oral arguments. That bill is now pending before the full Senate. But the would-be stars, the justices themselves, are not so thrilled. Dahlia Lithwick is here now to talk about this unfolding drama. Dahlia is legal analyst for the online magazine Slate and for us here at DAY TO DAY. Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Hey, Madeleine.

BRAND: Why is the Senate so interested in having this bill in forcing cameras into the courtroom?

Ms. LITHWICK: For one thing, we know that cameras in courtrooms are not a problem. An awful lot of state courts use them all the time without ill effect. The court is a taxpayer-supported entity, these justices are appointed for life. This is--every single case that they hear is history making. And yet they prohibit the cameras from coming in. Essentially, people who are interested in the doings of the court have to rely on second-hand interpretations from court reporters, who are not stenographers, who sit there frantically taking notes at oral arguments. There's just no way that in a democracy of this sort, the court can shield itself the way it does.

BRAND: And is that the argument in the bill? I understand Republican Senator Arlen Specter sponsored it.

Ms. LITHWICK: Well, Specter's been behind this you know initiative for years now, but this bill really does seem to have traction. And the bill that he's sponsoring would allow sessions to be televised unless the majority of the justices vote on a case-by-case basis that the due process rights of a specific party would be injured if it were televised. In other words, the justices would have to say not we don't like it in this case, but it's going to hurt a party. Otherwise, there's going to be cameras in there.

BRAND: And two of the justices appeared before a Senate hearing on this issue, Clarence Thomas and Anthony Kennedy. What did they say?

Ms. LITHWICK: Well, Clarence Thomas sort of ran down the laundry list that we've heard before about why the justices don't want cameras in the court. And he said things like, it would change the way the court conducts itself. In other words, the justices might act up for the cameras or more, probably more likely, attorneys would act up for the cameras. And then he said, you know, increased exposure of the justices would decrease their anonymity. There'd be an increased security risk for them and need for more protection. But those are not terrific arguments. In a sense, we all know who these justices are. They give speeches. We know them from their confirmation hearings. It's not entirely fair to say that these public officials should be standing behind a brick wall as part of their job.

Now Justice Anthony Kennedy went much farther than Clarence Thomas. And he said there's an actual separation of powers issue. He went so far as to say, and this is really a new argument from the justices, look, the court doesn't fuss with Congress and how they do their job, Congress shouldn't be telling the court how to do their job.

BRAND: Dahlia, if the court is so against it, how is it possible for Congress to force the court to do this?

Ms. LITHWICK: Well, the Congress controls the purse strings and don't forget Kennedy and Thomas were actually testifying about budgetary matters. But the court basically suggested, at least Justice Kennedy suggested, go ahead Congress enact your law, we're going to strike it down. So, it sort of remains to be seen who gets the last call on this.

BRAND: Well, the proceedings are recorded for audio not necessarily released; some of them are released. How do they feel about that?

Ms. LITHWICK: Well, it's become an interesting problem. The court started releasing audiotape in some oral arguments several years ago, notably in Bush v. Gore. The problem is that now it's the chief justice's call as to when they're important enough to warrant release. In other words, he's making a decision about whether something is of importance--public concern. And that strikes the justices as a fair balance. It strikes most of us as absurd. Why can't--if we hear some of the audiotapes and it's been a tremendously successful exercise, there's been no fallout--why can't we hear all of them? And I think the problem with the audio releases, it kind of suggests that the justices are wrong. If audio worked so well, television can only be better.

BRAND: Dahlia Lithwick, thank you.

Ms. LITHWICK: My pleasure.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online Magazine Slate and for us here at DAY TO DAY.

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