Televising U.S. Supreme Court Proceedings--A Little Sunlight Never Hurt Anyone (Or Could It?)

There is a move afoot to begin televising proceedings of the highest court in the land. If the Senate Judiciary Committee has its way, that is. This happens every few years. It happened again this past February.

The Judiciary Committee has proposed televising Supreme Court hearings. It used to be the rule that Supreme Court Justices hated being on television. But lately they've been talking a lot more. This past month Justice Clarence Thomas was making the rounds to all the talking head shows with his new book, "My Grand Father's Son," under his arm. (A great read, I understand). Even before that we saw Justice Ruth Bader Ginsburg chatting it up with Mike Wallace (in her chambers, no less). There was Justice John Paul Stevens who waited until age 86 to do his first TV interview ever with ABC's "Nightline." And then came Justice Stephen Breyer at the big, round oak table with Charlie Rose (not exactly prime time, but a big step nonetheless). And let us not forget Chief Justice John Roberts' show-stealing performance on PBS' series on the Supreme Court. One of the earliest appearances I can recall was Chief Justice William H. Rehnquist's Booknotes interview with Brian Lamb (the brilliant guy behind C-Span) way back in July 1992 when he talked about his new book "Grand Inquest."

And none of these appearances were about inconsequential matters. Most touched on substantive issues and the positions held by the Justices. The discussions may have been couched in terms of the books they were hawking, but books are expressions of deeply held beliefs. Particularly with Supreme Court Justices, books are the expressions of their own beliefs and ideals. But it seems like the High Court may be getting the message that no one reads anymore. Or at least, not before someone like Brian Lamb or the Oprah tells them to.

But they aren't all on the same page on this issue. I'm not sure what the positions of the other justices are, but their actions in appearing on TV in their private lives sheds some light. On the other side of the argument is Justice Anthony Kennedy. He appeared before that same Senate Judiciary Committee in February to implore them not to open up the proceedings to the dreaded cameras (oral arguments have been audio taped for decades). He beseeched the committee to remove the provision from the bill that would televise the hearings. His concerns, as expressed to the committee, are that justices may "play to the camera" and that by making hearings public it could "change our collegial dynamic" and forever "alter the way we hear cases." Wow. I guess he doesn't think much of his colleagues or their ability to get the job done without mugging for the cameras.

I am agnostic on the idea, really. There is a certain mystique about the Court now, even though you can hear the audio from past arguments. I read once that toward the end of his tenure on the bench Justice Thurgood Marshall used to fall asleep during oral arguments. I'm not sure showing things like that is very beneficial to the prestige of the Court. And it should have its prestige intact. It's not like we can vote these guys out.

One reason our system works so well--and why it has always worked so well, is the amazing deference we give the judiciary. Think about it: the Supreme Court doesn't have an army, they don't have secret police, no Sonny Barger and the Hell's Angels, or some burly guys with crooked noses hanging around waiting for orders. The Court has no real ability to enforce its own decisions by threat of violence. And yet, everyone just listens to them because it makes sense that in a society governed by the rule of law, you have to abide by the decision of the highest court in the land. Period. End of story. This is the difference between our system, and every other system of government where an AK-47 trumps the rule of law.

Justice Kennedy's impassioned testimony also gives me hope on another front. His greatest fear seems to be that the cameras will change the way oral arguments are conducted. His unspoken premise underlying that fear is that oral argument actually matters. He clearly believes that the questions the Justices ask and answers given by the lawyers for each side are relevant and are important to their decision on the case. It gives the impression, at least, that the Justices on the highest court in the land don't come into the case with their minds already made up. We forget about this sometimes. The Michigan appellate courts could take a lesson from that.

On the other hand, what a wonderful legacy that would make to be able to actually see the arguments in important cases like Brown vs. Board of Education or Gideon v. Wainwright or Miranda v. Arizona or Roe v. Wade. A powerful counter-argument could be made that it will only increase the respect for, and understanding of the Court. Or maybe not.

Ultimately, I'm just not sure I'm ready for the idea of being able to watch the Supreme Court hear oral arguments on my iPod. It feels a little . . . unseemly.