We live in an age where the unprecedented has become routine.
A former president has been accused of committing “historic crimes,” and has been indicted in four jurisdictions on a total of 91 charges. On March 4, 2024, the first trial in federal court in United States v. Donald J. Trump is scheduled to begin. It will be the most followed since O.J. Simpson was acquitted of murdering his ex-wife, Nicole Brown Simpson, and Ronald Goldman in 1995.
But Donald Trump is not the only one on trial. So, too, is the federal judiciary.
Trump’s challenges to the courts have been years in the making. When Trump objected to a 2018 decision overturning his policy of stopping migrants from seeking asylum, he attacked Judge Jon S. Tigar as a biased “Obama judge.” Chief Justice John Roberts immediately clapped back, saying there are no “Obama judges or Trump judges,” but rather, “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
In years since, the challenges to the judiciary have intensified. In 2020, Trump, colluding with then-Sen. Majority Leader Mitch McConnell (R-Ky.), rushed through the confirmation of Amy Coney Barrett to the Supreme Court 38 days before the November election. This violated the so-called Biden Rule when, in 1992, then-Sen. Joe Biden argued that no president should nominate a Supreme Court justice in an election year. But after the death of Ruth Bader Ginsberg in 2020, Trump and McConnell quickly cast the Biden Rule aside. Sen. Elizabeth Warren (D-Mass.) called it “the last gasp of a desperate party.”
In 2021, Justice Barrett delivered a speech at the University of Louisville’s McConnell Center during which she insisted, “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks.” But when Roe v. Wade was overturned a year later that perception became a reality. Today, public confidence in the court stands at a record low of 40 percent.
Confidence in the Supreme Court continues to erode thanks to the controversial ethics practices of several justices. Clarence Thomas has accepted potentially millions of dollars in gifts from billionaires who gave him 38 luxury vacations, 26 flights on private jets, tickets to sporting events, purchased his mother’s home with the intent of turning it into a celebratory Thomas-themed museum and helped with tuition payments for Thomas’s grandnephew. As one former federal judge commented, “I don’t ever remember seeing this degree of largesse given to anybody.”
But Clarence Thomas is not the only justice facing ethical questions.
Samuel Alito did not disclose a 2008 luxury trip to Alaska or a flight on a private jet provided by hedge fund billionaire Paul Singer, who afterward had several cases before the high court.
Sonya Sotomayor has prodded universities and libraries to purchase copies of her book prior to her appearances at those venues.
Ketanji Brown Jackson has signed a $3 million book deal for her autobiography. Former federal judge J. Michael Luttig says, “I have never believed that Supreme Court justices should write books to supplement their judicial incomes.”
Sen. Sheldon Whitehouse (D-R.I.) has led the charge to pass a law that would require the Supreme Court to adopt a code of conduct, investigate violations and explain any recusals. Justice Alito staged a preemptive attack on the measure, writing, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” Justice Elana Kagan was quick with a rejoinder: “It just can’t be that the court is the only institution not subject to any checks and balances from anybody else. I mean, we are not imperial.”
The Trump trials present a unique challenge to Chief Justice Roberts, who has resisted placing cameras in federal courtrooms. A federal rule forbids “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Congress could pass legislation permitting televised Trump trials but is unlikely to do so.
Thus, the burden falls on the Judicial Conference which decides administrative issues affecting the federal courts and is chaired by Roberts. Rep. Adam Schiff (D-Calif.) and 37 of his colleagues have signed a letter urging the conference to “explicitly authorize the broadcasting of court proceedings in the cases of United States of America v. Donald J. Trump.” Trump’s attorney, John Lauro, agrees that cameras should be permitted.
Without live recordings of the proceedings, Americans will be subject to various media interpretations of what happened without witnessing it for themselves. This will only further erode public confidence in the press. In 2023, the Gallup poll reported only 18 percent trusted newspapers and just 14 percent trusted television news. For Republicans, those figures were 7 percent and 8 percent, respectively.
Without cameras, conspiracy theories will proliferate, and Trump, always the master showman, will present his version of the proceedings to the public. Trump’s talent in creating “alternative facts” is evidenced by the fact that 70 percent of Republicans believe that the 2020 election was stolen, a prerequisite for making him the odds-on-favorite to win his party’s 2024 presidential nomination.
If Justice Roberts were to support a lone stationary camera to record the Trump trials and persuade his colleagues to do the same, the cable networks would surely provide wall-to-wall coverage. Both the prosecution and the defense will have their say, evidence will be presented, Trump will have an opportunity to take the stand and judicial rulings will be explained in real-time.
In 1774, John Adams said: “Representative government and trial by jury are the heart and lungs of liberty.” While Trump’s fate will be determined by juries of ordinary citizens, viewers watching in their living rooms will also hear the evidence and render judgment. It is this jury that will decide whether Trump deserves another four years in the White House.
In an era of the unprecedented, precedents are made to be broken. Over to you, Justice Roberts.
John Kenneth White is a professor of politics at The Catholic University of America. His latest book, co-authored with Matthew Kerbel, is titled “American Political Parties: Why They Formed, How They Function, and Where They’re Headed.”