Scalia Worries Televising SCOTUS Proceedings Will Misinform

Actually, Antonin Scalia is right. I do not write those words often, or lightly.

And it is actually Kevin Drum who comes off as glib and dismissive in this recent post on the Supreme Court Justice. In it, Drum takes Scalia to task for arguing that Supreme Court proceedings shouldn’t be televised.

Scalia makes the case that the American people will not be better educated as a result of televised Supreme Court proceedings because they will not watch the actual proceedings, but rather will be speed-fed them via 15 and 30 second segments on the nightly and cable news shows.

Drum construes this as follows,

“But complaining that the American public won’t give your proceedings the deference you think they deserve? That the media might dare to play short snippets of your arguments? Color me very unimpressed.”

This is despite the fact that Drum grants everything Scalia says,

“And let me add: it’s not that Scalia is wrong. Of course the media will do stupid stuff. Of course they’ll play the most incendiary snippets they can find. Of course Super PACs will do the same. And of course most of the public won’t ever bother to truly understand all the details of the proceedings.”

But “So what?” remarks Drum. “Nobody thinks that’s a good reason to limit access to any other branch of government. Politics is a messy game. It’s often unfair. That’s life, and in a democracy the public should get to see it unfold regardless of whether you think they’re smart enough to appreciate it.”

Except that, well, the public already has access to this information. Transcripts are posted the same day as arguments are made and, although seating is limited and offered on a first come, first serve basis, the proceedings are already open to the public.

So it’s not as if these events occur in secret, or that the average person does not have access to them. There is, of course, a barrier to entry of sorts, since one must go and seek out this information, in most cases, rather than wait to be lazily bombarded with pieces of it when a news program decides to show footage. This has the beneficial effect, however, of not politicizing the Supreme Court even further beyond its current partisan squabbling.

Because the television news media does abuse information, intentionally presenting it in its most inflammatory or controversial light, with an eye toward increasing ratings among those audience members affiliated with the lowest common denominator.

Scalia attempts to note, but does so poorly, that there is something just plain different about seeing an excerpt vs. reading it. That is of course true, and one need only let the imagination free for a moment to realize how much time would be spent watching Justices make faces, deliver curt or snide questions, or listening to the arguers stumble, stutter, and make utter fools out of themselves.

Drum argues that this is just the price of democracy; it’s messy but necessary. Why further mess in this regard is necessary is hardly clear though. In fact, I would go even further and propose taking cameras out of Congress as well. Does anyone want to advance an example of the last time public discourse or policy deliberations, were in any way helped, enhanced, or enlightened, by watching a bunch of predominantly old white men, ramble non sequitous talking points into the camera, with the hope that somehow it will eventually reach the inattentive eyes and ears of their constituents back home?

Imagine, for a moment, if all of the cameras were taken out of Congress, and Congress men and women actually had to talk to one another? Or imagine if they continued launching rhetorical jalopies into the stilted air of the capitol, despite no one else being there to hear or care, and think about that moment of revelation when they realize what the actual point of Congressional proceedings are? How much time and money is wasted on campaign stump speeching couched in the pale shadows of “the people’s business?”

There is nothing arrogant, condescending, or otherwise elitist in noting that to take up the project of understanding the complexity and nuance of policy proposals and negotiations, or of legal arguments and constitutional interpretation, requires time, energy, and care. And that these are not the virtues of cable or television news, and that if someone wants to embark upon this endeavor, they should do so with the full awareness that it is not easy, the road is fraught with contradiction and paradox, and the fruits of this labor are owed to no one but those diligent enough to do the job right.

If Drum feels that every official government proceeding should be digi-fied and archived for all to abuse, decontextualize, and consume uncritically, he should first demonstrate why providing shortcuts like this will enhance our democracy, or better yet, where in the past the lack of these info-tainment segments have denigrated it.

Sunshine is the best disinfectant except when it lulls us into believing that just because the sun is shining we can’t still get sick. More transparency is great, but not always a necessary or inevitable result of making information accessible in more easily consumable ways.

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58 thoughts on “Scalia Worries Televising SCOTUS Proceedings Will Misinform

  1. This is one of those issues I’m very conflicted about but don’t care about all that much. I think you and Scalia are probably right, but Drum’s point is a pretty good point, too.

    I do have quibble with this:

    Imagine, for a moment, if all of the cameras were taken out of Congress, and Congress men and women actually had to talk to one another?

    I suspect they already do talk to each other, or at least are able to, off camera. Maybe not on the floor of Congress, but elsewhere. It’s annoying to see the congresspersons staking their ground so often and in such jingoistic terms, but I think if they had the will, the cameras wouldn’t be a barrier.

    Similarly with the Supreme Court, but even more so. If they had cameras, they could still converse among themselves off camera. Also, cameras in the courtroom (what would we call them, “non-in camera cameras”?) might embarrass the justices from time to time, but since they don’t stand for reelection, I have trouble imagining cameras would be much of a check.

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  2. Scalia attempts to note, but does so poorly, that there is something just plain different about seeing an excerpt vs. reading it. That is of course true, and one need only let the imagination free for a moment to realize how much time would be spent watching Justices make faces, deliver curt or snide questions, or listening to the arguers stumble, stutter, and make utter fools out of themselves.

    Scalia is absolutely correct. But so is Drum: these proceedings are public and for that reason, alone and inherently, they should be made available to the public. It’s not a question of whether it would be beneficial or detrimental to the functioning of the Court. Those proceedings belong to the public and the government, as the agent and embodiment of the public, should make what belongs to the people available to the people for no other reason than that they have a proprietary interest in them.

    You can already get transcripts of oral arguments, often later the same day after they are made. But just as reading the State of the Union speech is not the same thing as seeing and hearing it, so too is reading a transcript of an oral argument a pale comparison to actually seeing and hearing the exchanges.

    Would it change the way advocates present cases to the Court? Yes. Would it politicize them, in a way I would later deplore? Likely. Would it change the way the Justices approach oral arguments? Yes. But none of it nearly so dramatically as Scalia fears. And here’s a news flash: The Supreme Court is already heavily politicized within its own ranks, and its membership, composition, and rulings are already political footballs.

    I continue to believe that absent a showing of very good cause, every court proceeding everywhere should be available to the public. These are public proceedings and reasonable means to make the content of those proceedings available to the public is for the good. The Justices challenge, but only rarely mock, arguments with which they disagree. And public disagreement over ideas is part of how our politics works. It is when the public disagreements become anchored on personalities or labels that the system becomes ill and dysfunctional. So if the Justices approach their job in good faith, the sight of Scalia giving a fair shake to a liberal-sounding argument, or Ginsburg giving a fair shake to a conservative-sounding one, then broadcast of SCOTUS proceedings has the potential to be a net benefit both to the body politic and to the Court as an organ of the government within that body.

    This goes for lower courts, too. These are public proceedings. If I had my way, every public proceeding in every court across the nation would be captured and broadcast on YouTube. Not because I’d enjoy having my own performances, particularly when I’m less than stellar at them, available for all the world to see. But because those less-than-stellar performances do not belong to me, nor to my clients. They belong to the public.

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    • “But so is Drum: these proceedings are public and for that reason, alone and inherently, they should be made available to the public. It’s not a question of whether it would be beneficial or detrimental to the functioning of the Court. Those proceedings belong to the public and the government, as the agent and embodiment of the public, should make what belongs to the people available to the people for no other reason than that they have a proprietary interest in them.”

      Making them available is one thing, and is already the case. Why available in televised form (which it must be acknowledged is not at all the same thing as being there)? What if CSPAN was the only network allowed to broadcast proceedings, and could only do so live? Would that be public enough?

      “But just as reading the State of the Union speech is not the same thing as seeing and hearing it, so too is reading a transcript of an oral argument a pale comparison to actually seeing and hearing the exchanges.”

      On this point I’m curious Burt: do you think that these concepts and arguments are best parsed on paper, or in live verbal exchanges? In a related question, do you think a student, high school or college, would, if quizzed, demonstrated better understanding of the arguments after watching them or after reading them? Admitting that reading is not everyone’s strong suit, do you think that when controlled for variations of this kind, one group would demonstrate better overall understanding of the proceedings than the other?

      “Would it change the way advocates present cases to the Court? Yes. Would it politicize them, in a way I would later deplore? Likely. Would it change the way the Justices approach oral arguments? Yes. But none of it nearly so dramatically as Scalia fears.”

      Based on what evidence, or analogies to similar events, would you make this forecast?

      “And here’s a news flash: The Supreme Court is already heavily politicized within its own ranks, and its membership, composition, and rulings are already political footballs.”

      Does this then preclude the Court from becoming even more politicized? Has Congress become more or less popular as an institution since cameras were situated within its bowels? Do you think this would be the case for the Supreme Court as well? And why, if additional politicization did occur, would this not be too much, too destabilizing?

      “These are public proceedings and reasonable means to make the content of those proceedings available to the public is for the good.”

      What is the good that will be produced?

      “It is when the public disagreements become anchored on personalities or labels that the system becomes ill and dysfunctional. So if the Justices approach their job in good faith, the sight of Scalia giving a fair shake to a liberal-sounding argument, or Ginsburg giving a fair shake to a conservative-sounding one, then broadcast of SCOTUS proceedings has the potential to be a net benefit both to the body politic and to the Court as an organ of the government within that body.”

      Why would this be the case if the cameras, as you above note, will only further politicize the institution and its members?

      “But because those less-than-stellar performances do not belong to me, nor to my clients. They belong to the public.”

      In this instance, what do you mean by belong? And what about this responsibility to make things public means we must make them televisable, or, going further, recordable for anyone to use in whatever way they like? Should people be allowed to take their own cameras into lower court proceedings? Like say a custody battle or murder trial? What good would be produced in doing this? Or, if it is not a matter of goods, what in the idea of liberal democracy necessitates this level of voyeurism?

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      • So many questions!

        Why available in televised form (which it must be acknowledged is not at all the same thing as being there)?

        Because it’s the best available medium to transmit the information. No, it’s not the same as being there.

        What if CSPAN was the only network allowed to broadcast proceedings, and could only do so live? Would that be public enough?

        No. I can see no justification to such a limitation other than to obfuscate access to the proceedings as though doing so were an inherent good. It is not, these are public proceedings. So make video of the proceedings available, or not.

        [Are] these concepts and arguments are best parsed on paper, or in live verbal exchanges? In a related question, do you think a student, high school or college, would, if quizzed, demonstrated better understanding of the arguments after watching them or after reading them? Admitting that reading is not everyone’s strong suit, do you think that when controlled for variations of this kind, one group would demonstrate better overall understanding of the proceedings than the other?

        As you note, different people respond to different means of learning. But given that we now have the technological ability to distribute this information, I think the real question is why wouldn’t we leap at the opportunity to do so?

        Based on what evidence, or analogies to similar events, would you make this forecast [that making video would politicize the Court but not so dramatically as Scalia fears]?

        Other cases in which cameras have been allowed in the courtroom to little apparent ill effect. For instance, consider the arguments in Perry v. Schwarzenegger before the Ninth Circuit panel. Those were very lawyerly and decourous and appropriate on the part of the advocates and on the part of the judges, all of whom acquitted themselves very well. This despite being broadcast by video live, and despite having a very politicized panel (Stephen Reinhardt) and the most political of all issues before any court since Bush v. Gore. But those arguments looked exactly like I’d expect a non-broadcast argument to have looked.

        Does [pre-existing politicization of the Court] preclude the Court from becoming even more politicized?

        Obviously not.

        Has Congress become more or less popular as an institution since cameras were situated within its bowels?

        Obviously less. Query as to the cause-and-effect relationship of the two, however. Periods of high and bitter partisanship pre-existed the existence and use of this technology.

        Do you think this would be the case for the Supreme Court as well? And why, if additional politicization did occur, would this not be too much, too destabilizing?

        I doubt it, by analogy to the Perry v. Schwarzenegger case I refer to above.

        What is the good that will be produced [by broadcast of arguments]?

        The public will be able to see and hear what is being done in their public institutions. This is an inherent good. There is utility to be derived from this inherent good as well. It will inform them as to the state of the law, the manner in which the law is made, and the changes to that law they wish to request of their elected officials.

        Why would this [the benefit arising from public seeing the Court being fair] be the case if the cameras, as you above note, will only further politicize the institution and its members?

        It might not, I admit; there is certainly the possibility of negative utility coming as an unintended consequence of a change and if it arises, we can respond appropriately just as we do with any change to anything else. But it might have good effects as well. The public might just demand new appointees to the Court behave like judges instead of like politicians. Or they might demand the opposite, finding that they like a politicized Court. You never know. Either way, it’s a democracy and the people ought to be informed about what their institutions of government are doing when they vote. Besides, as I’ve stated above, it’s an inherent good that public proceedings be available to the public.

        In this instance [assigning a proprietary interest to the public in court proceedings], what do you mean by belong?

        I mean it’s a public proceeding. The events and outcomes of public proceedings belong to the public as much as do public parks and roads; more analagously and less tangibly, the same as do proceedings of legislative bodies.

        And what about this responsibility to make things public means we must make them televisable, or, going further, recordable for anyone to use in whatever way they like?

        It doesn’t, necessarily, but why wouldn’t we do it that way? It doesn’t cost any more. The only reason that the First Congress didn’t do it that way was that the technology didn’t exist, and the only reason that the Eightieth Congress didn’t do it that was was that the technology was at that point too expensive and impractical. It’s now affordable and can be done by anyone with a modicum of technical skill.

        Should people be allowed to take their own cameras into lower court proceedings?

        Yes. These are public proceedings. There is no right of privacy, there is no need for secrecy. Therefore they should be at least as public as things that happen on the public streets.

        Like say a custody battle or murder trial? What good would be produced in doing this?

        I’ve already said that making public proceedings available to the public is an inherent good, but there is secondary utility to be realized as well. Judges will be subject to scrutiny and removal if they conduct themselves poorly. So will prosecutors. This will (or at least might) increase competence and consideration of the interests of justice. Better records of individual proceedings will be available for review on appeal. Members of the public, even those disinterested in the outcomes of individual proceedings, will learn about how courts work and be better able to conduct themselves and handle their own affairs before court — or in such a manner as to keep themselves out of court. They will also learn about their rights as citizens, and become better-informed voters.

        Or, if it is not a matter of goods, what in the idea of liberal democracy necessitates this level of voyeurism?

        I disagree that it is voyeurism. Watching a public proceeding before a public institution is like watching anything else that happens in public. Moreso here, because we’re talking about the business end of the law — not just how laws are made, but the courts show you how laws are implemented. Everyone has an interest in maintaining the rule of law and seeing to it that the law is fairly implemented, because the law is for everyone. Maybe you don’t care that I’m suing my landlord for not fixing my toilet. After all, your toilet works. But you do have an interest in knowing that if your toilet breaks and your landlord refuses to fix it, you have the ability to do something about that if you choose to do so. Maybe you think it’s bullshit that I have the right to sue my landlord for something like that; my remedy should be moving somewhere else. Great — go tell your state Assemblyman that you saw some guy suing his landlord for a bullshit reason and you want to see the law changed before landlords get sued out of existence because it costs too much money to rent apartments. You’re more likely to engage in that kind of public participation in your government if you see the courts in action than you are if you are ignorant of what happens in a court.

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        • Your thoroughness is something to behold at times, Burt.

          I am entirely with you, btw. This would certainly change the court and the public’s ideas about it, but I don’t see where there is a dispositive argument those changes would be worse, nor even if there were, why your point that people ought to have the fullest access to these public deliberations wouldn’t override it. Hell, with all the fooferaw around the leaks of the health care deliberations, I’m wondering why it’s such a big deal that those remain confidential. These are the public meanings of our public laws being deliberated, after all, and no one’s claiming a national security need for classification.

          I would propose as a middle-ground starting point, however, that SCOTUS simply post a live video feed of oral arguments on on its own website (which would also be archived), and set it up in such a way that it couldn’t be cribbed by cable news (in any case, I’m guessing it would be grainy and wouldn’t gat all that much play anyway in these days of HD dominance). Audio already becomes available on a delay in that way for some cases, I believe. We could see in that way what kind of difference moving pictures(!) being made publicly available would make in a limited way before deciding to move ahead with full C-Span-ization that the cable nets could glom onto any time they pleased.

          But ultimately, the argument seems to be that the problem with video becoming available is that suddenly more people than are desired would start paying attention to what was happening in that room in their own profane and prosaic, undisciplined and democratic ways, and that this would be Not Such A Good Thing. I don’t think that argument holds up.

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  3. No absolutely not. The proceedings are public and the only changes to information access that should be made is to allow more public to be exposed to them, not less. The media can be dolts with transcripts just as easily as they can be dolts with cameras. That people are complacent and foolish is absolutely a terrible arguement for decreasing the info available to them.

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  4. Impressive how consistently on message the right manages to be. Scalia’s theme of “secrecy is good because otherwise our opponents might exploit the facts” fits in perfectly with Romney’s excuses for not releasing his tax forms and the right’s newfound hostility to campaign finance disclosure.

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          • If telepathy was the standard means of information transmission, then yes. Otherwise the authorities have the ability to shape the message in subtle ways. Surely Marshall McLuhan and others made that clear enough long ago.

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            • If this is your fear, then go watch an argument yourself and report on it. Seriously, it’s not as if there’s any restrictions on who gets to go to these things other than “ability to take a day off of work.” This is not “secret” in any meaningful sense, especially not when transcripts are available to anyone who wants one; also of note is that it’s not exactly unheard of for the Court to release audio recordings for arguments of particular import. Is the difference between (1) public rights to watch in person as long as they show up a few hours early; (2) a transcript, (3) an audio recording, and (4) a visual recording really so large as to make one meaningfully “secret” in a way the others are not? Is so, at what point in time would the decision to offer any one of these, but not the others constitute a politically motivated, anti-democratic, and unconscionable desire for secrecy?

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              • Would you, or anyone here, happen to know if SC sessions are very crowded? In other words, is it easy to get in or do you have to do some lottery system or first come first served? I imagine for really controversial cases, it might be, but I was curious if that’s generally the case.

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                • I’ve only been to oral arguments once, but it was for an off-the-radar case and the room was still full. With some specific exceptions (other government officials, special guests, etc.) people get in on first-come-first-serve basis.

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                • It usually winds up being about full from what I can recall, though I’m pretty sure this isn’t necessarily always the case. But it’s first come, first-served for sure. For less publicized arguments, as I recall, you should be good to get in if you get there about 3 hours ahead of time, maybe even less. For reasonably well-publicized arguments, IIRC, you probably need to get there by around 5:00 am, and for heavily publicized arguments, you’ll need to be ready to camp out.

                  By the way – this is all for the seats that allow you to stay for the entirety of the arguments. As I recall, there is usually a separate line that allows you to go in for 10 or 15 minute snippets. In most cases except for fairly well publicized ones, I believe everyone who wants to do that is able to. I assure you that for the average layperson in most instances, 10 to 15 minutes is about as much as they can bear before getting ready to leave of their own volition.

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              • How about just make it all open, so you don’t have to answer all of the above accusations as well as the most obvious one of paternalism? Seems easier all around. And when they don’t take the easiest approach you have to ask why, just as with Romney’s tax returns.

                And yes, restricted access to information opens up the possibility of intentional distortion for political purposes. We saw this with the recent silly right-wing “you didn’t build that” outrage, in which they pretended not to be able to find the antecedent of “that”. The video and audio made the truth abundantly clear. Granted, in that case even the transcript was clear enough to any one with minimal intelligence, but there are propagandists having enough sophistication to exploit subtleties not found in transcripts. Why not just open it up so you don’t have to answer such objections?

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                • I believe you’re question’s already been answered repeatedly; perhaps you find it unpersuasive, which is perfectly reasonable, especially since there are a lot of tradeoffs involved, but this is not remotely close to Romney’s refusal to release his tax returns.

                  I’ll also note that you made no attempt whatsoever to answer my questions.

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                  • Well, your suggestion to travel to D.C. and attend all court sessions is too preposterous to spend any time on. Of course if the information is not available in a practical way to me it can be considered secret.

                    And I answered your question about whether making the information available in one medium but not another constitutes secrecy: yes.

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                    • I don’t recall suggesting that one person attend all court sessions. I suggested that it’s not overly difficult for people to attend court sessions that, you know, actually interest them.

                      There is simply no active attempt to hide anything, and I’m not familiar with a definition of “secrecy” that includes “failure to take the affirmative steps necessary to make sure something is maximally available to everyone at the lowest possible cost to everyone.”

                      If that is the definition you seek to propose, then I submit that your definition is not a terribly common one. Indeed, were your definition imposed universally, then virtually every single proceeding of government is “secretive,” with most far more secretive than the SCOTUS. So why is it that the Supreme Court should get singled out rather than, say, every proceeding before an executive agency?

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                    • Of course there are degrees of secrecy. Making only a transcript available isn’t as secret as inviting me to travel to DC to get it, which isn’t as secret as shooting it to the moon and inviting me to go get it, etc. And no, asking the Supreme Court to provide video doesn’t mean every proceeding before every executive agency has to do the same; it’s a question of practicality and demand.

                      My point was that your (and Scalia’s) paternalistic notion that we might not be able to handle the raw data is not what we do in a free society.

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              • Seriously, it’s not as if there’s any restrictions on who gets to go to these things other than “ability to take a day off of work.”

                And, you know, “presence in Washington, DC”. Most of the country doesn’t actually live within a few hours’ drive of the Supreme Court.

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                • Well, sure, but it’s not as if no one who lives outside of that area can make the trip. DC is not exactly an unpopular tourist destination as it is, and the court gives a pretty good amount of lead time on its oral argument schedule, IIRC.

                  Also worth mentioning is that a huge chunk of the American population resides within an 8 hour drive of DC – basically all of New England except Maine and parts of NH and VT; the entirety of the Mid-Atlantic states from NC up to NY; all of PA, almost all of Ohio, a good chunk of Kentucky, and all of WV. In total, you’re looking at over about 100,000,000 people, or about a third of the total population.

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      • I agree with this.

        Also worth mentioning, having been before judges with a similar style to Scalia’s – while it can be frustrating as all hell for the attorney, it actually does do quite a bit to test the boundaries of an argument, which is ultimately quite important.

        By and large, my understanding has long been that oral appellate argument is pretty much worthless in terms of persuading a judge to rule one way or another; not entirely worthless, but pretty close to it. However, where it’s really useful is in helping the judge figure out the contours of their opinion, which in turn may have at least some small effect (and sometimes, quite a bit of an effect) on future cases.

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        • This is right. Especially in an appellate argument, 95% of the case has been decided, 95% of the time, before oral argument is held. That doesn’t mean the oral argument is insignificant — it’s a last-ditch chance for the loser to pull out a victory; it’s a test for the winner to demonstrate to what degree the facts and law are on her side. And neither side should ever assume that theirs isn’t the 1 in 400 of cases in which the oral argument will make a difference — if it was a slam-dunk, the court wouldn’t have scheduled oral arguments at all.

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  5. Good post, Ethan. Like others, I’m very much of two minds on this.

    At the outset, though, I should mention that I think the democratization arguments for cameras are weak – the courts, particularly in the federal government, are not supposed to be democratic. That’s not to say they’re necessarily expected to be above politics, but they’re certainly set up to have anti-democratic tendencies.

    Having gotten that out of the way, I’m not sure I wholly buy into Scalia’s argument, either. Don’t get me wrong – he’s got a point, but I think he somewhat exaggerates it. For starters, there are a good number of state Supreme Courts that already have televised arguments, or at the very least live audio feeds; the arguments that I’ve seen in these cases have usually been little different from arguments in untelevised appellate courts. Of course, it’s doubtful that, except for Bush v. Gore, any state Supreme Court argument has ever gotten more than perhaps a few thousand viewers, and few have even ever gotten the soundbite treatment on the local news. Obviously, the level of interest in the SCOTUS would be far, far greater.

    Mitigating even this concern, I should mention, is that there are surely some, though perhaps a minority, instances where a written transcript would convey a greater sense of conflict than a soundbite.

    Nonetheless, I probably still come down against cameras in the SCOTUS. I suspect it would ultimately just contribute to the reality show-ification of American politics and government. Legal journalism is a nightmarish mess as things stand (may we all fart in Nancy Grace’s general di-rection). Conflict is what sells; always has, always will. Even obscure cases could largely become fodder for the news entertainment mill – “Can you believe how Justice X embarrassed Justice Y with statement/question Z? They must really hate each other!”; “Can you believe how ridiculous Justice A’s question was?” Etc., etc.

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    • Thanks Mark!

      “Mitigating even this concern, I should mention, is that there are surely some, though perhaps a minority, instances where a written transcript would convey a greater sense of conflict than a soundbite.”

      This is certainly the case, but I would suggest that by virtue of the requirement that these instances be read, rather than watched, makes them far less likely to be happened upon, and thus greatly decreases the opportunity for partisan rallying/misunderstanding.

      As for the reality TV-ification, right on. Especially given the Court’s new penchant for leaking insider sqaubble.

      Althought having all Nine on an island or in a room or on the road in a giant bus would be awesome.

      If I had more time and some good edition software, I would totally mix up trailers for a series of new reality tv shows coming this fall featuring the Justices and old youtube footage.

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      • Oh, I agree in general; I’m just suggesting that there are probably some exceptions where things work the other way.

        As for your reality show idea, it’s worth noting that Justice Thomas is legendary for roaming the country in his RV, which IIRC, has a pretty sweet vanity plate.

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  6. Perhaps the validity of my bias toward written communication can be teased out here.

    My initial instinct is to say that it’s much harder to controversialize/sensationalize written excerpts, and that those who seek out the oral arguments will find themselves in a more critical and thoughtful position if forced to entertain them on the page rather than with their eyes and ears in front of a monitor.

    Am I alone in believing that the rational basis upon which decisions like this are made and evaluated, lends itself better to written communication?

    We can dispute what actually is “rational,” but there’s no denying that the traditions upon which are legal system (precedent specifically) is based conincide with those of print, and that adding to this mix an incompatible tradition, and one which appeals more to our emotions and snap judgements as well, e.g. gossip, might not be a good idea?

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      • My intuitions on this point largely agree with Ethan’s. To state this more strongly, public choice theory tells us that people will prefer emotive arguments (which are more intuitive) to more rational ones (which are often counter-intuitve). Here is why: Few people actually care about the truth for its own sake. People care about the truth to the extent to which knowing the truth is likely to benefit them. Even in a democracy where everyone has a say on what the government is, the marginl effect of any one person’s vote is so small that it is negligible. Ignoring emotive arguments has psyhological costs. We may be required to give up cherished beliefs. Simply trying to focus and not be distracted by one’s emotional reaction itself requires considerable effort. Unless there is some compensatory benefit, people will not do the more difficult thing. Therefore, the economically rational thing to do is to go for the emotive argument. Truth is as such a positive externality in an unregulated marketplace of ideas. The reason why Science gets things right often enough is because it is exclusive. Only people who have done a lot arduous work get to work in a lab. Publication requires very strict scrutiny. There are established formal and informal norms of enquiry. Public deliberation is the opposite. Arguments are appraised by people who are often ill equipped to evaluate them. There are no norms of enquiry formal or otherwise. In such a situation, we can expect to see an underproduction of truth. The larger the relative cost of accepting rational arguments over emotive ones, the less truth we are likely to see. Given the way we are wired (and the situation in which human intelligence evolved) it is likely that the cost of accepting rational arguments relative to emotional ones is lower when we view them on print than when told verbally. (Although if anyone has a paper on this, it would be great)

        Now, although it is true that we are not, strictly speaking, homo economicus, it is still a good way to bet when it comes to predicting human behaviour.

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        • Me 3: you can debate transcripts. You can quote larger chunks for context. Videos, audio, just too slippery, too vulnerable to paraphrase and ADHD. [The “you didn’t build that” thing is crazy enough WITH the transcript. Something as complex as a SC decision, forgit it.]

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  7. The UK Supreme Court hearings are broadcast live. As far as I have seen neither justices nor lawyers use this fact as an opportunity to act out, nor does the serious media do a particularly bad job of covering hearings. I don’t see why the situation would be any different in the US. I agree with arguments for more high quality journalism (ahem, publicly funded would be great) – but I don’t see why the tabloid, low quality coverage of some outlets should interfere with giving the public access.

    Yes, there are all sorts of nefarious possibilities for video of oral argument. But televised proceedings could also be used for the good, as an educational tool to give the public additional insight into what exactly is going on in their courts. I do appreciate the point that oral arguments represent only a fraction of the entire process, but nevertheless I think the public’s business should be conducted in public. Were we in the age of radio, audio would be sufficient. In the 21st century public access means allowing cameras.

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    • By the way, belated kudos to the UK for reforming the House of Lords out of the judicial structure of HM courts. A good move, that.

      When are you going to do away with the last minimal vestiges of political power held by the Lords, anyway, and render them the superfluity they truly are?

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      • Superfluity?!? It is one of my favorite chambers – if one can be said to have such a thing. Obviously, the continuing existence of hereditary peers is a bizarre anachronism – the remaining members arriving by those means ought to be tossed out or appointed on their merits (though the Blair government already got rid of the vast majority of hereditaries). I’m also not really partial to the name of the house and some of the conventions.

        But the idea of an amending house is a good one. And with about a quarter of the membership of the Lords being non-party affiliated crossbenchers, the Lords has high quality debates, and probably more importantly, better legislation. Watching Senate debates and watching Lords debates, there is absolutely no contest the Lords debates are conducted on a higher level altogether.

        In terms of being an appointed house, there is the run-of-the mill party donation, political patronage appointments thing. Also, politicians, successful ministers, and high level civil servants whose careers are in their twilight hours end up in the Lords. But there is also the group who are appointed because of their expertise, people who would likely never have run for office. The scientists and other expert peers contribute to better debates and legislation.

        Also, I’m not British. Lived there for a few years and have lots of British family. I had the fortune, or misfortune sometimes hard to tell, of having solely American citizenship. In a family with many dual nationals, it is kind of sad to just be an American sometimes.

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  8. It seems to me that publicizing the oral arguments portion of the Supreme Court would put the emphasis on *ENTIRELY* the wrong part.

    It’d be like publicizing the portion of lawmaking where the Representatives/Senators talked about what they want the law to do and the session naming the law rather than focusing on what the law actually says in the Bill that aspires to being signed.

    (And we could do something like show Senator Smith saying “This CORN ACT will feed children nutritious food!” and then show the newscaster saying “Senator Jones opposed the CORN ACT” without ever getting into how the law actually appropriated funding for nuclear reactors by taking the funding of corn intended for use in ethanol production.)

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    • Those arguing in favor of cameras in oral argument would probably favor cameras when court rulings are announced as well. Since the public isn’t admitted to the weekly conference, I can see that being legitimately cordoned off as justices’ more private deliberations.

      Also, I don’t see why oral arguments being televised/webcast would so grievously misplace emphasis. Justices and advocates frequently refer to cases/issues/arguments brought up in the briefs. It would be up to the outlet to flesh out the meaning and deeper issues behind questions and responses. I could see some offering law journal level coverage and other outlets offer low quality fare – but I still don’t get why that’s an argument against opening up access.

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  9. Drum does not need to demonstrate why this would not enhance democracy. In this age of freedom of information, it is upon you to demonstrate why only the “first come first served” at the Supreme Court building should be privileged to something that we are not, when it affects all of us. An argument to not videotape and make available supreme court proceedings, when virtually all other arms and levels of governments are subject to that, is as arbitrary and whimsical as wigs on the heads of English judges.

    How the media and people will treat it is irrelevant to the discussion.

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    • So how will having videotaped proceedings, in addition to transcripts, be superior to the status quo?

      I’ve listed several reasons why it will be worse, so if you want to be more thorough in how this cost/benefit analysis is carried out, you should probably put forth some benefits.

      After all, the issue of secrecy is null: all the materials are already available. So it’s not a matter of freedom of information. Lots of things go on all the time that I can’t witness first hand. That doesn’t mean everyone needs to film them and upload them to the net for me.

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      • I am not interested, my dear friend, in a cost/benefit analysis because it is a matter of values not value. It is not a matter of secrecy, it is a matter of openness (as perverse as that sounds).

        If the Supreme Court never lets cameras in, I am not going to whine or advocate for legislation to force it; it is the court’s prerogative. But I would form an impression about what the court’s values are.

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        • The values being, in this case, that those who wish to learn what goes on in the Court may do so, but those who would decontextualize the information for the purpose of sensationalism, controversey, and cynical partisan demogaugery won’t be given more tools with which to do so?

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      • As an afterthought, this is analogical to this business about Romney’s taxes, as follows:

        I sneer when people ask him to reveal his tax information because I dont think anybody should have to right to ask for that kind of personal information.

        But at the same time, the fact that he does not want to share it voluntarily has single-handedly sealed the fact that he does not get my vote.

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  10. I think Scalia wants to keep cameras out because doing so helps SCOTUS to keep a relative degree of anonymity among the general populace. Together these 9 folks are as powerful as POTUS; yet — based on surveying my students — the vast majority of the population would not be able to recognize them walking down the street. That sorta has a cake and eat it too dynamic in the sense that you get a great deal of power will a rather minimal hassle.

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    • “Together these 9 folks are as powerful as POTUS”

      Do you have an evidence to substantiate that? Last time I checked, SCOTUS couldn’t assassinate citizens, indefinitely lock them up, or have access to the largers intelligence network in the world.

      Oh, and the military, there’s that too.

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      • They get the final say over constitutional interpretation. I’m not one of those “we live in a judicial tyranny” folks. I like the way the system currently works with SCOTUS getting that final say. I do think it makes them a 1/3 powerful co-equal branch of govt. as it should be.

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