Congress should butt out of Supreme Court's business

Congress should butt out of Supreme Court's business
© New York Times/Pool

The nine justices of the United State Supreme Court are much too polite and diplomatic to tell Congress to mind its own business, but it still needs to be said: Congress should butt out of the issue of whether television cameras are allowed to broadcast SCOTUS proceedings.

Efforts are again underway in the Senate to force the Supreme Court to televise its proceedings. The “Cameras in the Courtroom Act” recently passed the Senate Judiciary Committee. The bill is sponsored by Sen. Dick DurbinDick DurbinManchin keeps Washington guessing on what he wants Democrats hope Biden can flip Manchin and Sinema US gymnasts offer scathing assessment of FBI MORE (D-Ill.) and co-sponsored by Sen. Charles GrassleyChuck GrassleyGrassley calls for federal prosecutor to probe botched FBI Nassar investigation Woman allegedly abused by Nassar after he was reported to FBI: 'I should not be here' Democrat rips Justice for not appearing at US gymnastics hearing MORE (R-Iowa). The bill passed out of committee with a bipartisan 15-7 vote.

The arguments for forcing video coverage of SCOTUS are that it would make the nation’s highest court appear more transparent and enlighten the public as to the court’s procedures. That sounds good, but the matter is much more nuanced than public relations or educating the masses. Raising the court’s profile through television is merely an attempt to further politicize SCOTUS, an effect that would surely diminish rather than enhance the court’s ability to provide reasoned legal decisions. 

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Chief Justice John Roberts once told a judicial conference, “We (SCOTUS) don’t have oral arguments to show people, the public, how we function.” Roberts is correct, of course: The function of Supreme Court arguments is not to provide civics education that is otherwise not happening in high schools and colleges. The court’s only mission is to interpret and apply the Constitution.

The judges also don’t hold sessions to boost cable television ratings or provide mass entertainment. The late Justice Antonin Scalia once addressed the televising of court hearings in a NBC interview, “I think there’s something sick about making entertainment out of other people’s legal problems.”

The concern about transparency is a shallow one, given that SCOTUS is already highly transparent. Transcripts of all hearings are posted promptly on the court’s website, along with audio recordings. All briefs on which the justices make their decisions are public records. Detailed explanations accompany the court’s decisions, with the comprehensive reasoning of both the majority and dissenting judges. Society just can’t be so visually focused and superficial that a governmental entity’s supposed transparency hinges on video display. Reading transcripts requires more work, but generates more depth of understanding than watching television.

Television is a medium of emotion. Inserting it into the nation’s highest court necessarily changes the functioning of that court. Media theorist Marshall McLuhan explained in the early days of television 60 years ago that mediums have an effect on content and the processing of that content by audiences. The superficiality of television and its emotional nature runs contrary to every priority of the Supreme Court’s duty to rationally rule on constitutional issues, focused solely on the facts and the applicable law. The practices of television news would actually disrupt reporting of the actual substance of any court case, with out-of-context sound bites, kneejerk pseudo-analysis by on-air pundits, and body language analysis of each justice.

People absolutely behave differently when they are in front of television cameras, a point made by then-Justice Anthony Kennedy at a Senate hearing in 2007. Current SCOTUS Justice Elena KaganElena KaganTo infinity and beyond: What will it take to create a diverse and representative judiciary? Texas, abortion and the tyranny of the shadow docket Senate panel will probe Supreme Court's Texas abortion ruling, 'shadow docket' MORE acknowledged as much during her confirmation hearing in 2010 when she quipped that the prospect of televised Supreme Court hearings, “means I’d have to get my hair done more often.” Of course, she was providing a moment of humor to the proceedings, but there was an underlying point. Televising SCOTUS proceedings to millions surely contaminates the courtroom environment. 

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Grandstanding members of the Senate or House love to boost their profiles by jumping in front of television cameras, but the nation doesn’t need Supreme Court justices to become celebrities.

Elevating the images of justices diminishes their ability to be fair jurists.

Instead of making them more accountable, increased visibility saddles them with increased pressure to pander to the media or populist mobs. Interpreting the law fairly should not be influenced by inserting visual technology for sensationalism or purposes of political leverage.

Senators now wanting the Supreme Court on television should recall the fiascos they helped create in recent years for confirmation hearings of justices. Those indecorous displays provide sufficient evidence for how posturing and mugging for cameras destroys reasoned debate.

Cameras will surely come into the Supreme Court someday. Most state courts already allow some degree of television access. By the way, there is scant evidence that citizens in those states know any more about the court system than in states with limited camera access.

Until the nine SCOTUS justices decide the time is right for television intrusion, Congress should stay in its own lane and remember that the constitutional framers created separate and equal branches of government.

Jeffrey McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.