Lawmakers to SCOTUS: Get with the times

Members of Congress are taking the Supreme Court to task for avoiding the issue of cameras in the courtroom.

Chief Justice John Roberts released his year-end report this week, unveiling a new online filing system that could go live by 2016. But absent from the technology-focused report was the issue of allowing video recordings of the court’s oral arguments. 

Lawmakers, transparency advocates and news organizations have urged the court for years to embrace video recordings. Rep. Gerry Connolly (D-Va.) and Sen. Chuck Grassley (R-Iowa) both vowed this week to reintroduce legislation to force the court to adapt. 

“This is not some mystical, druidic priesthood that periodically deigns to review constitutional issues and hand down their wisdom from on high,” Connolly told The Hill. “It is a human institution, it’s a branch of government, and it needs to come into the 21st century.” 

{mosads}Connolly said transparency is paramount in an institution where the members have lifetime appointments. The public would not accept many of the Supreme Court’s policies if they were applied to Congress, he asserted.

“We would never accept that kind of self control by the legislative branch, or for that matter, the executive branch,” he said. 

C-SPAN began broadcasting proceedings from the House in 1979 and from the Senate in 1986.

Grassley said accountability is becoming more important with the high profile agenda the court has taken on. He insisted the Founding Fathers would have embraced video recordings. 

“The founders intended for trials to be held in front of all people who wished to attend,” said Grassley, who is expected to take over the Senate Judiciary Committee Gavel in the new Congress. 

Only about 70 seats are available to the public in the courtroom. The court releases transcripts of oral arguments and delayed audio recordings. One of the first publicly recorded videos of the court surfaced this year, when a group of protesters surreptitiously recorded a number of proceedings.  

Current Chairman Patrick Leahy (D-Vt.) leveled similar criticism of the court’s stance. 

“Not mentioned in his report, however, is the failure of the Supreme Court to allow even old technology, like photographs of the Supreme Court in session or live streaming of its oral arguments online,” he said in a statement. 

A spokesperson for the court declined to comment on the criticism. 

Without mentioning the issue directly, Roberts acknowledged the court has been purposely slow to adapt to new innovations or the “next big thing.”

“Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good,” he wrote in the report.  

To illustrate the point, he mentioned the court’s late adoption, in 1931, of the bygone technology of pneumatic tubes, which allowed the chamber to quickly transfer documents throughout the building via a series of pressurized tubes. 

The court adopted the technology nearly 40 years after it was created and finally got rid of it in 1971, long past its prime. The anecdote also served as a reminder, Roberts said, that all technology outlives its usefulness.

In the report, the chief justice also sought to justify the court’s approach to technology by describing the judiciary as distinct from other branches of government, and from the private sector.  

He said the court’s “passive and circumscribed role” as a neutral referee requires any innovation adopted to first and foremost help fulfill that responsibility. 

The Supreme Court’s late adoption of an online filing system — which will log petitions, briefs and all other motions — is evidence of its slow embrace of technology. Lower federal and appellate courts have been using a similar system since 2001. 

Roberts cited a number of reasons for this, from the appropriations and procurement process to making sure that every member of the public — and not just the “most tech savvy” — can access the records. He also touched on the specter of court records being hacked into, noting the sensitivity of some documents.

Connolly said he was hopeful the addition of cameras could happen in the near term, though he said some personnel changes may first be required. However, there is a history of Supreme Court nominees speaking favorably of cameras during confirmation hearings and changing tune once on the court.  

Over the years, justices have made a number of arguments against cameras: That recordings would create a dynamic where justices and lawyers perform for the camera, clips could be provided without sufficient context, and oral arguments are not an adequate barometer of how a justice will vote since justices are many times playing devil’s advocate. 

“Are we saying the more remote we make it, the less accessible we make it, the more esteem it will generate in the public?” Connolly asked. “If that is the case, that is an argument for pulling the plug on C-SPAN.”