Justices Not Ready for Their Close-Ups
Justice Alito said he doesn't see why having cameras in the high court would be useful

by J. H. Huebert
by J. H. Huebert

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Ever wanted to see what goes on during a public session of the U.S. Supreme Court? You're not alone. Unfortunately, unless you want to take a trip to Washington, you'll probably never get so much as a glimpse – because the justices, who go back to work Monday for their new term, don't want you to.

Justice Samuel Alito reiterated that position last summer while speaking to a group of students, professors, and lawyers at Pepperdine University Law School in Malibu. Alito said he doesn't see why having cameras in the high court would be useful. After all, he explained, the Supreme Court is already one of the most transparent institutions in government. You can read the justices' detailed opinions after they decide a case, and you can even download audio recordings of attorneys' oral arguments and questioning from the justices.

According to Alito, people who want cameras in the courtroom just can't explain why it's important to also be able to see the justices' and attorneys' "lips moving" in addition to all the other information now provided.

But it's easy to think of reasons why video would be helpful. Most Americans have no idea what goes on at the Supreme Court – none – except that somehow the court decides really important questions, like whether everyone in the country will be allowed to commit sodomy. Most Americans don't have time to read the court's often-lengthy opinions, and downloading and listening to audio recordings is more than a little cumbersome.

But if you could catch Supreme Court arguments on CSPAN – say, by accident while channel surfing – then many more people would know what goes on there.

I also attended the Pepperdine event, and afterward I approached Justice Alito and asked him what he thought about putting the court on cable.

He didn't deny that televised oral arguments would increase the public's awareness, but he said that it still wouldn't be a good idea because "people act differently when they know they're on camera." Even Supreme Court justices would play to the camera? Alito said yes, but after seeing him before the CSPAN cameras at Pepperdine, I'm inclined to give him more credit than that. Besides, it's not like the justices need to worry about being reelected.

Then Alito added what he apparently considers to be the strongest argument against cameras: They wouldn't really show what goes on inside the court, because the real work of the Court occurs when the justices read the paperwork in a case, then discuss it among themselves in their conference room.

Well, I asked, isn't that just an argument for putting cameras in the conference room, too? Alito dismissed that idea with a laugh. "That would make things different!"

But why not do it? Lots of dealing goes on behind the scenes in Congress, but at least we ultimately get to see our senators and representatives argue it out. We can't vote the justices out of office, so shouldn't we at least be allowed to keep really close tabs on them? What do they have to hide from the people who pay their salaries? Unlike the executive branch, the Supreme Court doesn't have the convenient excuse of national security. You could argue that the justices would be less inclined to speak freely if they knew that their words were being broadcast around the world – but if we have justices who are afraid to speak their minds openly, just what kind of people are we appointing, anyway?

And hang on a minute – didn't Alito say earlier that the court is already transparent enough because we can read its opinions after a case is decided? That doesn't seem very consistent with his claim, stated to me, that the real work of the court goes on in secret, behind closed doors.

Alito didn't mention it, but I'm sure the justices are aware that cameras would come with a personal cost to each of them: They would no longer enjoy the mystique that has shrouded the court for so long. Their every public pronouncement would become less newsworthy. And the justices would seem more human, and less like black-robed gods, if their faces and voices became too familiar, and their occasional gaffes or statements out of context could be exploited by the likes of Jon Stewart and David Letterman.

Those who favor a powerful federal government that appears fearsome, omnipotent and unassailable have, therefore, a strong reason to oppose cameras in the Supreme Court. But those who share the view of our founding fathers – that citizens should always keep in mind that we are governed by highly fallible men who are not to be trusted – should call for cameras. And that means cameras in the courtroom, in the conference room and anywhere else they can help us keep an eye on those who would assume the power to make decisions that affect all of us.

Reprinted from the Orange County Register with permission.

September 29, 2007

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

Copyright © 2007 Orange County Register

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