The Second SCOTUS Standing Scandal

The courts conduct the nation’s business. The public’s business.  The courts stand apart from the rest of the government so that they can pass judgment over the government when need be. And the public has a right to see what the courts do.

We fought a revolution for, among other things, public courts and public hearings. Having courts do business in the full light of day where everyone can see what the courts are doing is a fundamental part of the notion of due process.

Normally, you can walk right in to a court and observe the proceedings for no other reason than it’s your right as a citizen to do so, and you need offer no other explanation. (You do not have a right to disrupt the proceedings, of course.)

Some courts, however, have limited seating. Like the Supreme Court of the United States, the court that (other than the one handling your traffic ticket) is probably the one you care most about. For high-profile cases, SCOTUS can be packed. For super high-profile cases like the marriage cases, the line to get in and observe oral argument can be out the door and there are some very odd facets of waiting in line to get in. Professor Dale Carpenter describes nearly scandalous conditions for the line to get in to SCOTUS for the same-sex marriage cases. Very little of it sits right with me, but all of it could be circumvented rather easily. Here’s my solution, and I still can’t understand why it would even be controversial although I expect blowback today as I always get when I jump on this particular soapbox.

Every courtroom in every state in this nation should be on video, streaming to YouTube. Live. Every traffic ticket and every small claims squabble. Every divorce, adoption, eviction, and arraignment. From the moment the court opens its doors until the moment public proceedings conclude. If you could walk in off the street and see it live, you should be able to tune in on YouTube. The courts are public. The public should be able to watch. Period, full stop: it’s a matter of right. How much could this possibly cost? A dollar a day?

This should be especially true for the Supreme Court of the United States which, after all, is the ultimate arbiter of our highest law.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


    • Um, I’ll make one point of clarification: I think the judge should be able to suspend video of certain chunks of testimony, provided the written record is available.

      I’m not sure a rape victim testifying in court needs that youtube video linked to them, for the rest of their life.

      • A fair point. And there are other kinds of hearings that ought to be, and are, confidential too.

        But there needs to be a good reason proceedings are closed to the public, and by the same token, so there should need to be a good reason to turn the YouTube cameras off.

        • I assume the same rules would apply, as for when a Judge orders the public gallery cleared, or when a suppression order is given.

          • Exactly, this is not a new issue. The proposed video feed would be an extension of the public gallery and exactly the same rules would apply.

  1. I agree mostly but there are some things which should not be broadcast nor should court be wide open. I don’t know how much family law you have done but high conflict divorce/ custody cases are viscous. There are many accusations thrown out with little or no proof. Sometimes the accusations might be backed up at the final trial but at prelim/ interim hearings lots of poo gets smeared. I’m not a lawyer but i work for a court in divorce/custody cases. It would not do the public and definitely not help the families involved to have stories and accusations of DV, sex abuse, substance abuse, infidelity, etc going out over the net. Pro Se’s especially have trouble enough representing themselves without their every word and bit of ignorance being sent out and recorded for posterity. As it is many parents show court docs to the kids. Have hearings on youtube and kids in ugly cases would be watching every bit of slime thrown by and at their parents.

    • You know, the optimist in me thinks that having all of this out in the open – forcing people to realize they were publicly acting with such cruelty toward each other – would be the fastest way to make things better for all of us in the long run.

      The pessimist in me points to reality tv, and agrees with you.

      • Never doubt how good people can be when they are at their best. Never doubt how bad people can be at their worst. Divorce and custody fights bring out the worst in people at a terrible time in their lives.

    • What’s wrong with Schadenfreude?
      When Scaife got divorced, we actually managed to swing some tourists (along with a nice WaPo travel article on his divorce).

      😉 No, but seriously… I dig ya.

  2. The reason that I don’t like this is that it’ll turn SCotUS nominations, to some degree, into the equivalent of beauty contests. Someone like a Scalia would tend to do better than someone like, say, Thomas.

    Now I’m not talking about a sweeping change in that direction but more of a nudge. I don’t know that we’ll get anything from video that we wouldn’t get from written/audio transcripts.

    • But don’t you think we’re there already, Jay?

      Antonin Scalia’s nomination was barely controversial; Clarence Thomas only barely squeaked through; John Roberts was hailed as a “rock star.” Harriet Miers, no doubt a keenly intelligent lawyer, couldn’t make it through the beauty contest and seemingly everyone knew that nearly from the get-go of her failed nomination.

      To the extent that advocates (or jurists!) would “play to the cameras,” don’t we already have that with the delayed audio and transcripts?

      What we would gain is immediacy and a lack of the disgraceful jostling for entrance into high-profile courts, and readily-accessible ability of the public to review what really happened there (and not just what the court reporter recorded).

      • I don’t know that that’s a direction we want to keep going in, though… additionally, I wonder if it won’t also result in “boring” cases more likely to not be granted cert (though, they should be) and “sexy” cases being granted cert because, hey, ratings. (Or eyeballs.)

      • ability of the public to review what really happened there (and not just what the court reporter recorded).

        Is there a significant difference between the two? I’ve always seen the Hansard (reports of everything in Parliament; maybe it has a different name in the US) as a reliable record of parliamentary debates, and would expect court records to be equally so.

        • The words will be the same; court reporters do a remarkable job of transcribing spoken language with very high accuracy.

          But they cannot capture inflection and tone, body language, facial or hand gestures, or pauses. To the extent that those things shade and nuance the meaning of the spoken word to you, then video would adds an extra dimension.

          There’s a reason I hire not only a court reporter but also a videographer for every important deposition that I take.

          • You have to hire a videographer? You know they have, like, cameras that can do all that, right? :-p

  3. I agree, with the possible exception of adoption cases, unless we don’t think people have a right to privacy/confidentiality in such matters (in addition to other named exceptions, such as the testimony of rape victims).

    • Ah, but I think adoptions should be public anyway, cameras or no. I’ve spoken to a lot of families in the courthouse hallway; it’s quite obvious why they’re there because they’re happy to be in court — indeed, they’re usually bursting with joy, and like a lot of people bursting with joy, they are perfectly happy to share that joy with all the world. An adoption is nothing to be ashamed of; it’s a time of happiness. Not a single person involved that I’ve asked has said other than that they would have been happy to have had the proceedings be public.

      I’d allow for adoption to be closed off to the public upon application of the family, but I’d have the presumption be that they were public.

      • “I’d allow for adoption to be closed off to the public upon application of the family, but I’d have the presumption be that they were public.”

        Yes, I should have stipulated as such. If the folks involved wish the adoption to be private (usually to protect/conceal the identity of the birth mother/parents), we should have a mechanism for that. But it need not be the case for all, or even the default application.

        There are probably even way to make them all public while taking steps to protect/conceal the identity of particular parties.

      • Just curious. I have seen warnings not to make announcements when a child is born. One, because someone could steal their identity and you wouldn’t know for 18 years. Two, because psycho wanna be mommy can find out about it and steal your child. Would you think there would be the same concerns for video taping adoptions and releasing those videos to the public as there are about releasing too much information about births?

    • I didn’t know adoption required going to court. I mean obviously it’s a legal procedure but I think of courts as being for settling disputes, which adoption should hopefully not involve. Why is it not done by formalising the paperwork in an office somewhere?

      • Burt can probably weigh in better, but I do believe that there are sometimes challenges to adoptions. Whether there should be or not, I believe that we allow for “interested parties” other than the adoptive parents, birth parents, and child(ren).

  4. “Having courts do business in the full light of day ”

    I had jury duty a couple years ago. None of the courtrooms had so much as a window. After a week of sitting and listening to shysters blabber on and on I was ready to kill for 5 minutes of daylight.

    • Hopefully, the thought of having to go back to court again for a week was sufficient deterrent.

  5. Some yes, some no. For the Supreme Court, I agree (although it seems like we get transcripts of those hearings); these are already public in that the public are allowed to be present, and they’re of interest to the entire nation.

    For minor courts – does a person really deserve for their hearing for a misdemeanour to be put online for the world to see? I don’t think so. Put divorce courts online, and it would just make people’s lives and real struggles a new form of (more realistic) reality TV. The privacy of the people involved in the cases is a serious issue.

    Plus, you’d be encouraging judges to play to the TV audience rather than making sober rulings, especially as some judges in the US are elected (a thing I never understood; I thought the point of judging is that they’re supposed to be impartial and judge cases on the merits, not on public opinion). The Supreme Court isn’t elected, and they already judge ideologically (seems like people can guess pretty easily what Scalia will say on any given case without having to wait for him to rule) and play to the public, so televising them likely wouldn’t make things significantly worse; but it has serious issues for some of the lower courts.

    • Well, I also think that judges should not be elected. It renders judges too vulnerable to political pressures to allow them to make legally correct but politically unpopular rulings. The easy case for this is Texas v. Johnson: an obviously legally correct ruling but an immensely unpopular one.

      So judges need to be chosen in some way that removes them from the political cycle. Executive appointment and legislative confirmation is the best way I can think of to have that happen while incorporating the concept of ultimate popular sovereignty. Some people don’t like the idea lifetime appointments like in the Federal system. I say, fine, make the appointments be for a reasonable, substantial, determinate term of years.

      I keep on insisting that for most of its work, the Justices on SCOTUS are not as ideological as people think they are, but on sexy Constitutional cases it’s true that they’re fairly easy to predict and those predictions fall along partisan lines. Bringing cameras into the courts would not affect this at all, so far as I can imagine. I also have difficulty seeing many judges either mugging for the cameras or altering their rulings in trial court level decisions because they know people are watching them. Statutory law and precedent binds them to a significant degree; so too does heavy workload. That’s not to say none would: I’m of the opinion that the harm of a few grandstanding judges would be outweighed by the benefit of greater public scrutiny.

      • Actually, there are a number of pleasant surprises from time to time when the Court doesn’t act in an ideological manner, or vote in the way one might expect.

        While people were busy blabbing about SSM, arguably one of the most important cases in the last 30 years was decided in a very unexpected way; Justice Thomas writing for the majority in a unanimous ruling.
        This is a game-changer; a new dawn of rights for the people.

      • As the GOP’s electoral strategy becomes more and more based on gerrymandering and voter suppression, the conservative justices move to strike down the sections of the VRA that would interfere. Who could have predicted that?

    • Plus, you’d be encouraging judges to play to the TV audience rather than making sober rulings,

      This is my concern. Well, as much the lawyers as judges. I do fear that TV’s in the courtroom would change the way people act. And not for the better.

      • But if doing the right thing means certain people might act like assholes, you deal with the assholes; you don’t avoid doing the right thing.

      • The OJ trial showed what cameras can do to a trial.

  6. Are we excluding video of the jurors? Are we excluding video of witnesses? I am wondering if knowing that video of their testimony will be online forever may affect a witnesses testimony. I am also wondering if a juror may change how they rule on a verdict if they know that forever and ever there will be video of them too.

    • I like this idea.

      When one of my friends is found guilty, I want to know the faces of every single juror who found him guilty. With Google getting into the face tracking business, it shouldn’t take me too long to find each and every one of those muthaf***ers and “thank” them for their impartial verdict.

      And that goes double for those lil’ snitches. Yeah, they think they know how much courage it takes to be a whistleblower. I’ll let each and every one of them know exactly how many pints of courage it takes to be a rat.

      Along the same lines, I also think that we should start allowing each and every prisoner accused/convicted of a violent crime to be allowed cell phones in their cell.

      I take back what I said below. Televising court cases is the greatest idea EVER!!!

  7. SCOTUS should be live-streamed, no question — for the same reason Congress is.

    Other courts? A little more iffy. But at the SCOTUS level, all the briefs and the arguments themselves are already public record and (theoretically) open to the public.

    There’s no reason NOT to stream them. Set up static cameras, it can be as boring as CSPAN, but record it and make it available.

  8. That still wouldn’t alleviate the demand for the limited seating at the high profile cases, for the same reason that TV broadcasts of NCAA championship games doesn’t diminish the demand for tickets. For the seats, an open lottery system should be in place. It wouldn’t stop people from paying others to go get a ticket for them (or if it was online, paying someone to spend all day submitting their name in hopes of getting a ticket), but at least it would eliminate the lines and the standing outside in freezing temps.

  9. *Looks at Judge Ito’s behavior in the O.J. Simpson case.*

    *Looks at Youtube comments.*

    No. No, it shouldn’t.

    There’s a difference between making a process accessible to citizens and making it so easy that no effort is involved. When no effort is involved, then, much like voting, people will expend that same level of effort into understanding the issues involved.

    This idea should die in a fire.

    • You seem to be confusing SCOTUS with a bench trial or a jury trial.

      They aren’t even remotely the same, nor — frankly — can I see any member of SCOTUS bothering to play for the cameras. They certainly don’t for the audience they have, and that’s the peers they actually give a flip about.

      • First off:

        “Every courtroom in every state in this nation should be on video, streaming to YouTube. Live. Every traffic ticket and every small claims squabble. Every divorce, adoption, eviction, and arraignment. From the moment the court opens its doors until the moment public proceedings conclude.”

        Second, this post was more about the fact that, while lowering the effort needed to see something may broaden your audience, it also lowers the effort that your audience will put in to understand it.

        But, if you honestly think that putting the SCOTUS on YouTube really enhances things, then … wow.

        • True. But then, I’m not in favor of putting cameras in all courtrooms — but think SCOTUS, at the least, should have them.

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