Allow video cameras in the Supreme Court

In June, the U.S. Supreme Court will deliver its decision in King v. Burwell, the landmark case argued last month that could potentially end health insurance subsidies for over nine million people and unravel the Affordable Care Act.

Despite the great public interest in this case, only a few hundred people who are physically in the courtroom will be able to see the Justices deliver their decision.

{mosads}Unlike the proceedings of Congress, which the public can access via C-SPAN, cameras are not allowed inside the Supreme Court. There is no opportunity for members of the public like me to watch oral arguments or opinion announcements, no matter how significant the case. Instead, for the oral arguments of King v. Burwell last month, I was kept appraised of the proceedings by a group of reporters who listened to part of the arguments, then excused themselves from the courtroom to blog.  Refreshing websites every five minutes, I could get timely but wholly incomplete information.

Public opinion is overwhelmingly supportive of allowing cameras in the Supreme Court during public proceedings. Most people are interested in the ability to access complete, accurate, and timely information about public policy issues that directly affect their lives – health care, religious freedom, search and seizure, same-sex marriage, and others. Cameras would expand public observation of significant, historical lawmaking, to people anywhere in the country, and the world.

The Justices are the most vocal opponents of this proposal. One of their arguments against permitting cameras in the courtroom is that the Justices and lawyers may “play to the cameras,” recognizing that the complex proceedings will be diminished to brief sound bites for the evening news. Essentially the Justices worry the media is going to interfere with how they do business, but public sessions of Congress and the high courts in Canada and Great Britain permit cameras and they are able to carry on with their business as usual.

Another upside to having livestreaming cameras is that they would allow viewers to get accurate information, something the media filter does not always provide. Remember when Fox News infamously reported, “SUPREME COURT FINDS HEALTH CARE MANDATE UNCONSTITUTIONAL” and CNN, “Mandate struck down” when in fact in 2012 the Court ruled the opposite in Sibelius v. National Federation of Independent Business, the previous challenge to the Affordable Care Act? Allowing cameras in the courtroom during opinion announcements would allow the public to hear directly from the Court, potentially diminishing the race among news outlets to be the first to report the Court’s decisions, even if it’s wrong. 

Increased openness by the Court also could provide an opportunity for education and engagement. In 2009, Justice Kagan (then a Supreme Court nominee) remarked, “If cameras were in the courtroom, the American public would see an extraordinary event …there is a debate of really extraordinarily intellectual adultness and richness…I think if you put cameras in the courtroom, people would say, “wow.” They would see their government working at a really high level.” Importantly, young girls would see three of the most professionally successful women in America working at that really high level.

Congress has recognized that opening the Court to cameras would improve transparency and accountability and is aligned the principles of good government. Last month, Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) introduced legislation that would require open proceedings of the Supreme Court to be televised. The Cameras in the Courtroom Act of 2015, also introduced in the House, applies only to sessions where members of the public are already invited to observe in person and allows Justices to remove cameras if televising would constitute a violation of due process rights of one or more parties before the Court.  Similar legislation has been introduced with bipartisan support for the last nine Congresses, but has failed to gain traction, in part because of opposition from the Justices and the absence of a well-funded and organized campaign to press House and Senate leadership to prioritize the issue. It’s time to make it a priority.

For the short-term, what if the sessions had live streaming audio? Audio recordings of oral arguments are typically released on the Friday following the arguments, and recordings of opinion announcements are made available months later in October, when the Court begins its new session. Switching to livestreaming would not change anything in the courtroom but could give the public more timely access.

The good news is that under Justice Roberts, the Supreme Court has made some progress toward greater openness, for example, releasing same-day audio recordings of oral arguments in some high-profile cases, like the upcoming same-sex marriage case, Obergefell v Hodges. The same cautious approach could be used to livestream select cases as a next step toward greater transparency.  Live audio would allow interested members of the public to access the proceedings, and the absence of video could alleviate some of the concerns of the Justices and other opponents of cameras. The consequences, both intended and unintended, could be explored before adding video and expanding live coverage to all cases. 

Until then, the Supreme Court falls short on openness which means that for the nine million people whose insurance subsidies are at stake in King v Burwell, a sketch artist’s rendering is as close as they will get to viewing what transpired in the courtroom.

McHugh, is research assistant professor at Northwestern University’s Feinberg School of Medicine and an OpEd Project Public Voices Fellow.