Dave Sidhu - April 07, 2006
This week, two Supreme Court justices testified before a House subcommittee and specifically argued that Congress should not get in the Court's business regarding the televising of Court proceedings. While the Justices justified their resistance to televising the Court with fancy and lofty words such as "deference" and "etiquette," the real reason may be the difference between the Court and more popular jurists, such as Judge Judy.
On Tuesday, Justice Anthony Kennedy said to the House subcommittee:
"We feel very strongly that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches."Justice Clarence Thomas contended that providing television access to the Court would create security problems for the Justices: "members of the court who now have some degree of anonymity would lose their anonymity." (The concerns regarding the safety of judges are undoubtedly important and serious, however the extent to which Justices and other members of the Federal bench maintain private lives due to their public appearances and the increasing popularity of judicial gossip blogs is surely debatable.)
There is little doubt that legal shows have become a mainstay of American television - from legal dramas, such as The Practice, to real-life legal sagas, such the OJ Simpson trial. The growing trend of legal news programs, such as Court TV and CNN's Nancy Grace, underscore legal television's place in American culture. (Even non-legal knock-offs, such as Style Court, are on the air.)
Of relevance to the discussion of televising the Supreme Court is the number of popular "Judge shows" (which owe their existence to Judge Wapner's People's Court). The list of such courtroom dramas is impressive and includes Judge Judy, Judge Mathis, Judge Mills Lane, Judge Joe Brown, and Judge Hatchett.
Judge Judy is no joke: her ratings are so high that she is commanding a reported $30 million per year salary - "more than Dr. Phil's and Jerry Springer's salaries combined."
If the Supreme Court has its oral arguments televised, it will be in the same ballgame as Judge Judy and others. The fact remains that there is no way in which the Supreme Court can compete with Judge Judy. Sure, Justices Kennedy and Thomas could care less about Judge Judy, but televising the Court will place it in that ballgame whether the Justices like it or not -- and the Court will get clobbered in the court of public interest.
In this light, there may be two reasons why the Court is so reluctant to open its doors to cameras: first, the Court cases can be so obscure (read: boring) that the public will not tune in. Indeed, the two cases coming before the Court on Monday ask these questions (among others):
Whether error as to the definition of a sentencing enhancement should be subject to harmless error analysis where it is shown beyond a reasonable doubt that the error did not contribute to the verdict on the enhancement.Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment"
Whoopdie-doo! Today's episode of Judge Judy, on the other hand, features the following disputes:
A partygoer is shocked to see a video proving that he was inebriated and guilty of assault.A retired woman sues a young man who got drunk and wrecked the car she purchased for her granddaughter.
What would the public rather see? The answer, it seems, is obvious. Moreover, as funny as Justice Antonin Scalia is, he can't possibly match these quips from Judge Judy:
"I eat morons like you for breakfast.""I suggest that you get a job."
"You are full of baloney!"
"Do you see stupid written on my forehead?"
Accordingly, the Justices' negative response to the prospect of cameras in the court room may be a function of judicial insecurity (not notions of etiquette or judicial independence) where the public's lack of interest in the Court's often esoteric proceedings may be confused with the public's view as to the limited importance of the Court as an institution.
A competing theory -- that the Justices think that the public may not be interested because they are too, ahem, modest in their understanding of the law to follow cases dealing with ERISA, Section 1983, etc. -- is just the corollary of the argument articulated above. In other words, judicial arrogance and judicial insecurity are two sides of the same coin. In either case, it would appear that the Justices feelings regarding how their Court will be viewed and received by the public is a matter of psychology, and these feelings may be the reason why they do not want cameras in their particular court room.
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Posted by Dave Sidhu at April 7, 2006 01:43 PM
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Not sure I agree with you Divya, even with the Anna Nicole Smith case, the question there was "Whether a claim that falls within the scope of the jurisdiction conferred upon the federal courts and that seeks neither to probate a will nor to administer or assume control over the property in a decedent's estate is nevertheless excepted from Federal jurisdiction if it involves the adjudication of rights related to property that is the subject of an ongoing state probate proceeding."
How many people are going to sit through an hour of argument dealing with that topic? It's not like the cameras would show Smith during that one hour; you would probably only see the advocates and the Justices. Seems like even in high-profile cases, the court would lose out big time.
Wanting to fly below the radar is a good point, but the court releases audio with no problem and CSPAN carries some arguments, so the public is aware. There is something particular to TV that upsets the men in black
Paul - I agree the SC hearings will never get big ratings. They'll probably do the same as C-Span. I'm just wondering why anyone should imagine otherwise. Surely, the justices know this.
It's probably a good thing that there are no ratings for CSPAN :-)
I suppose the Justices and everyone else know that the Supreme Court hearings will get low ratings. I think the point is that there is something to this knowledge that is really part of why the Justices don't want to be in the TV arena - it makes them regular, just like any other TV programming, and if people won't tune in they may not respect/care for the court at all.
When are we going to privatize the Supreme Court?
Or at least outsource the sucker.
Has anyone done a cost/benefit analysis on outsourcing the judiciary?
We had the testimony of a sitting President (Clinton) in front of a special Grand Jury televised on Sept 21 1998.
But when it comes to televising the utterings of these SC justices, we need "deference" and "etiquette". What flimsy double standards - not on part of the SC justices here, but congress, if they buy this argument.
The ratings of such broadcasts may be low, but as a functioning democracy, should we not have every right to see what happened within the court? Especially on matters that have nothing to do with national security interests. If they don't want live feeds, so be it. But when they can pass judgement on the legality of laws directly affecting my personal life, I don't have the right to see what transpired when they made that decision?
I think they are simply frightened that their bad attitude and biases could be more trivially show-cased and laughed at.
Also, since Anna Nicole Smith was brought up - I think Clarence Thomas should recuse himself from the case due to conflict of interest. Either that, or televise what questions he asks her lawyer after 10 pm.
I support a C-Span style televising of the SCOTUS sessions.
I think at the end of the day Vedant is correct; the public's right to know what goes on in the Supreme Court trumps all the counter-arguments.
Security can be handled, as it must be. Perhaps showing close-ups of any particular justice could be banned. You would just have a couple of wide angle views of the room with a transcript of the unfolding dialog across the bottom.
No ratings - the show is strictly, and only, a public service. No private network should have any kind of stake in its ratings, and no advertisers should be able to air any kind of a commercial on the show.
And the agency set up to broadcast the proceedings should not be a private entity, but a public government agency.
I think a low-tech, government-operated channel is the best. Hire interns from the ranks college broadcasting majors who can list it on their resumes when they graduate. It should be a bureaucratic, paper-slogging, boring government exercise in public access.
No exciting music, no exciting camera work, no hyped-up commentary. No viewer vote ins. Just dead, dry , boring wide angle views of people walking around in funny robes and nearly incomprehensible legal jargon burbling along with the scrolling transcript.
Those who are interested (like those who have a stake in the cases being shown, or law students, or other law professionals) and are not bored witless by it can follow along.
Everyone else can tune in for ten minutes during the first week it airs, then flip back over their favorite gut wrenching junk-TV they always watch.
That would completely defuse the whole rock-star issue, and still preserve the public's right to view the proceedings.
And why isn't the public's "right to know" satisifed by 1) audio of the hearings, 2) transcripts of the hearings, 3) press coverage of the hearings by multiple outlets, including the major networks and blogs?
The public may have a right to know, but that is already satisfied. They are not guaranteed the most effective or attractive means.
"The public may have a right to know, but that is already satisfied. They are not guaranteed the most effective or attractive means"
1. The Supreme Court justices are paid extremely well from public funds. They serve for life. It does not get better than that. These are serious discussions happening here, not salacious cruft. As a tax payer, many others and I demand the most effective, widely adopted, and transparent form of visibility available out there.
2. The same metric of audio feeds and blog rolls can be applied to a lot more stuff that is telecast - including Congress proceedings via CSPAN. Why the double standards? Remember, the very people oppose TV broadcast of the proceedings supported telecast of the embarassing, gratuitous, adult-oriented excess, that shouldn't even have made it that far.
Unless there is something to hide or fear, why the reaction? Isn't it ironic that one cries hoarse about liberty, but suddenly brings 'deference', 'propriety', and 'anonymity' as reasons to stop the broadcast of the highest office of appeal regarding violation of liberty?
Within the next 2 years, this very court will determine what my wife and I do with my unborn foetus - it does not get more personal than that. But showing those anachronistic humbugs debating the merits and demerits of such an issue, well that is disrespectful.
"The day you see a camera come into our courtroom, it’s going to roll over my dead body."
- Justice David "Anachronistic humbug" Souter
I was aware that the liberals on the bench oppose it. Heck, if the justices get to vote on the issue, you'll likely see a 9-0 decision against it.
My point still stands. You can't represent the last resort of appeal on liberty, and then use clauses like anonymity, propriety and deference to avoid the spotlight being directed at you. Everything we are talking of telecasting is a matter of public record, not proceedings within their private rooms or hallway conversations. And if audio recordings are available, why can't the natural step to TV be made? I will be bored to death listening to audio. I prefer TV as body language, and the reaction of others when one justice is speaking would be very valuable pointers. I would also value splice-in commentaries of others on the proceedings, something that just does not flow through as well with audio commentary or written essays.
With great responsibility comes great pressure. Deal with it.
This issue has similarities to refrees in sports games resisting the advent of slow motion replays to evaluate the correctness of their decision. Initially, every referee opposed it. Today it is simply accepted.
Even if these justices hold out, it is simply a matter of time. Do you think today's multimedia savvy generation is going to mature and accept this viewpoint? That is where anachoronism comes in. Souter is 67, sprightly for a justice. He won't have his wish come true.
It is anti-American to resist change.
Throughout the ages, mankind has demonstrated a clear and unambiguous tendency to resist change, and the current panel of 'judges' at the High court is no different. But the people's will will ultimately prevail. It is only a matter of time!
Why are these judges so obstinate, so intransigent, so conservative? Can't they recognize that the world is changing and that to resist change is foolhardy? Today, we have instant access to the information age via the Internet, something our forebears did not have. Are we better off with more information or not?
These unwise judges should come to there senses and get off their pedestals and acknowledge that there is an insatiable appetite to know and that it is what most Americans prefer. They must do what is necessary and what the people want. It is unfortunate that they are appointed for life!
One another day and a different time, another panel may view it differently (as the people do) and allow their will to prevail.
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(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)It is anti-American to resist change.
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I was aware that the liberals on the bench oppo
"The day you see a camera come into our courtro
"The public may have a right to know, but that
And why isn't the public's "right to know" sati
I don't know, Dave. No-one can compete with Judge Judy - she's a rock star. There should be no face lost in losing to her. My theory is that the SC justices want to continue to fly under the radar and not be exposed to more public scrutiny. I realize that everything that happens in the SC is a matter of public record, but most people don't pay attention to it. With televised proceedings people will become more aware of what goes on, how each judge votes, etc. And every once in a while, when an Anna Nicole Smith shows up, they can out-do Judge Judy at the ratings.