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High Court Hides from Camera's Glare [Commentary]

Professor Majorie Cohn, Thomas Jefferson School of Law

When the Supreme Court entertained arguments last Friday that could determine who will be the 43rd president of the United States, it worked virtually in private. Unlike the Florida Supreme Court, which let the sunshine (and television cameras) into the hearing that gave the green light to hand-counted ballots, the highest court in the land convened before just 80 members of the public.

The nine justices of the United States Supreme Court refuse to allow television coverage of their hearings. Reasons given range from protection of their personal privacy to preservation of the Court痴 mystique. Chief Justice William Rehnquist told a 1992 judges conference that if the justices didn稚 look good on camera, 妬t would lessen to a certain extent some of the mystique and moral authority of the Court.

Justice Harry Blackmun, author of the Court痴 opinion in Roe v. Wade, once passed a group of anti-abortion protestors during his noontime stroll. Unrecognized, he stood and looked on as they railed against the rights protected by the bystander痴 most famous decision.

Twenty-three hours before the Supreme Court痴 1989 hearing in Webster v. Reproductive Health Services, which many thought might overturn Roe v. Wade, hopeful spectators began lining up in front of the Supreme Court building to vie for the few public seats. A scalper sold the eleventh place in line for $100.

The Supreme Court has held that there is a right to a public trial. But it is not clear whether a public trial means a televised trial. When a defendant appears in court, there may be valid reasons for excluding a camera, if the publicity could harm his or her constitutional right to a fair trial. But when the Supreme Court hears arguments, there are no witnesses or jurors to be influenced or intimidated by the cameras.

Although Justice Ruth Bader Ginsburg told a group of University of Virginia law students that she generally favors gavel-to-gavel cameras in the courtroom, she didn't specifically include the Supreme courtroom. She said: 典he problem is the dullness of most court proceedings, adding, 的t痴 often tedious.

Justice Antonin Scalia once told an audience condescendingly that 斗aw is a specialized field, fully comprehensible only to the expert.

Yet millions sat glued to their television sets two weeks ago as the Florida Supreme Court grappled with technical legal issues of statutory construction. The High Court on Friday was faced with deciding whether the Florida Supreme Court violated federal law or the United States Constitution. Public interest in this hearing was overwhelming. It is imperative that the American public, so polarized in this post-election limbo, perceives the ultimate decision-making process as a fair one.

The Supreme Court痴 denial of the petition filed by C-Span and CNN to allow cameras to televise Friday痴 arguments was a foregone conclusion. As Justice David Souter told a House Appropriations subcommittee in 1996: 典he day you see a camera come into our courtroom it痴 going to roll over my dead body.

However, the Court took a small but significant step by allowing an immediate release of an audiotape of the proceedings, which in ordinary circumstances, wouldn稚 be released for several months. In 1955, Chief Justice Earl Warren inaugurated the practice of audiotaping oral arguments. But although the tapes were turned over to the National Archives, scholars who checked them out had to sign a lending agreement that they wouldn稚 reproduce them. University of California-San Diego political science professor Peter Irons defied the agreement in 1993 and marketed the tapes with a transcript entitled 溺ay It Please the Court. The Court, furious, threatened 斗egal remedies but never followed through with its threat.

Justice Sandra Day O辰onnor told conference attendees in Colorado a few years ago: 摘ventually we will probably have television. But it probably won稚 be for a good while. How long a while that will be is anyone痴 guess. Hopefully, Justice Souter will live to see the day.

December 5, 2000

Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, is co-author of Cameras in the Courtroom: Television and the Pursuit of Justice (McFarland 1998). An earlier version of this op-ed appeared in the Sacramento Bee.