November 27, 2005
When Will We Get a Look Inside the Supreme Court?
By Steve
Chapman
Anyone who's seen the film "Fantastic Four" has wondered
what it would be like to have the supernatural power of Jessica
Alba's character to become invisible. At least one person actually
knows the answer: Chief Justice John Roberts.
One day,
he's on national TV for hours on end, testifying before the Senate
Judiciary Committee. The next, he's vanished from sight. Unless
you make a trip to Washington and attend an oral argument, you
may never get a glimpse of Roberts doing the job the nation has
entrusted to him.
So you're
well-advised to see Samuel Alito Jr. when he appears before that
same committee for his confirmation hearings in January. It could
be your sole opportunity to watch him in action, addressing the
momentous legal issues of our time. After that, assuming he's
confirmed, Alito will vanish behind the impenetrable walls of
the court.
This is
a weird country: We can watch Paris Hilton having sex, but we
can't see our justices deliberating.
Unless,
of course, the court admits cameras, something it has so far stoutly
resisted. That could happen one of two ways: a decision by the
court or a decision by Congress. And there are flickers of hope
on both fronts.
The first
came when Roberts, under questioning by senators, said he was
willing to consider allowing live TV and radio coverage of Supreme
Court sessions. That was a change from the attitude of his predecessor,
William Rehnquist, who barred the doors for fear that public visibility
would harm the court's "mystique and moral authority."
The second
is a bill introduced by Senate Judiciary Committee chairman Arlen
Specter, R-Pa., to require the court to open up to cameras. Cosponsor
Sen. Charles Schumer, D-N.Y, has said, "I think this is the
year to make this law."
It's a basic
axiom of democracy that government institutions should be subject
to the scrutiny of the citizenry. So our courts are open to anyone
who wants to see what goes on inside. As the Supreme Court once
said, "A trial is a public event. What transpires in the
courtroom is public property."
But when
it comes to the Supreme Court itself, the average American generally
can't claim that property -- since attending in person is the
only way to exercise the right of access. Given the size of the
viewers' gallery, only a tiny fraction of the 296 million Americans
can do that on any particular day. For most people, the court
is only slightly more accessible than the vaults at Fort Knox.
Why this
should be so is a mystery. It's not as though we lack experience
with TV cameras in the courtroom. All 50 states now allow them
to cover at least some judicial proceedings, and in the early
1990s, some federal courts tried them in a three-year pilot project.
Afterward, a study by the Federal Judicial Center reported that
the presence of cameras "did not disrupt court proceedings,
affect participants in the proceedings, or interfere with the
administration of justice."
There are
plausible fears that the electronic eye could intimidate witnesses
or jurors, and thus get in the way of a fair trial. Those fears,
however, apply only at the trial level. In the Supreme Court,
there are no witnesses or jurors -- only attorneys making arguments
and justices interrogating them.
Some judges
fear the public's eyeballs would be seared by gazing directly
upon these interactions. As federal appeals court Judge Edward
Becker said in 2000, "The oral argument process is very intense,
rigorous . . . The problem with televising arguments is that they
can be edited, and if the public sees me giving a rough time to
one lawyer, they think I'm biased."
But that
same alleged peril exists with the audio tapes that the Supreme
Court sometimes makes available immediately after hearing important
cases. If any justice has gotten a reputation for bias from that
exposure -- or a reputation for anything -- it's news to me.
What TV
coverage would do is give citizens a chance to personally observe
one of their most important government institutions and, in the
process, gain a richer understanding of how it works. That approach
works very well when it comes to confirmation hearings for Supreme
Court nominees. I'm betting it would work just as well in the
post-confirmation phase.
Copyright
2005 Creators Syndicate
