WASHINGTON (CN) — With another Supreme Court confirmation hearing set to amplify the push by a majority of Americans who want to see the justices in action, anxieties are running high for the court to at least firm up its recent trend of broadcasting audio of oral arguments.
The Supreme Court has live-streamed audio of its oral arguments for almost two years as a result of Covid-19 policies that limited the gathering of the justices, attorneys and reporters at the high court. Now that Covid-19 policies are receding around the country, some are advocating to make the temporary policy permanent.
A new letter from 40 Supreme Court practitioners who have argued a total of 464 cases before the justices ask Chief Justice John Roberts to continue facilitating access to livestreamed audio of oral arguments.
“Nearly two years ago, the Court changed its broadcast policy from Friday audio releases to livestreaming plus sameday online posting,” the attorneys wrote. “Since then, scores of law professors have used the streams as teaching tools of appellate advocacy. Hundreds of media outlets have linked to them so listeners and viewers could hear directly from the justices, unfiltered and in real time, about the issues the Court was grappling with. And tens of thousands of Americans have come to understand the seriousness and the care with which you and your colleagues treat each case and each advocate who comes before the Court.”
The Supreme Court did not respond to questions regarding the letter or if it would continue livestreaming arguments following the conclusion of Covid-19 protocols.
While continuing a practice that has been in place for nearly two years is still an unknown, the majority of Americans are asking the court for even more access. A new C-SPAN/Pierrepont poll found the majority — 65% — of likely voters surveyed want live TV coverage at the high court. Further 70% of voters surveyed say allowing cameras in the courtroom would build public trust.
The survey found that almost half of respondents have been listening to livestreamed audio from the court. Younger Americans were more likely to listen to the livestreamed audio of oral arguments available today, and those who did said it made their view of the Supreme Court more favorable.
“This survey demonstrates that Americans have found and are listening to the Court's oral arguments and that listeners are coming away with a generally higher opinion of the Court,” Susan Swain, a co-CEO of C-SPAN, said in a statement on the survey. “That’s a strong message that more transparency is good for the Court — and good for the public.”
For years the high court’s justices have said cameras in the court would be ruinous for the institution. Most of these arguments stem from the thinking that allowing cameras in the courtroom would create an irresistible urge to get five minutes of fame on the evening news.
“Allowing the arguments to be televised would undermine their value to us as a step in the decision making process,” Justice Samuel Alito said during a House Appropriations Committee hearing in 2019. “I think lawyers would find it irresistible to try to put in a little soundbite in the hope of being that evening on CNN or Fox or MSNBC or one of the broadcast networks and that would detract from the value of the arguments in the decision making process.”
Another argument for not having cameras is that the justices would self-censor to avoid being taken out of context.
“I think we would filter ourselves in ways that would be unfortunate,” Justice Elena Kagan said in the same 2019 hearing. “In other words, the first time you see something on the evening news, which taken out of contexts suggests something that you never meant to suggest, suggests that you have an opinion on some issue that you, in fact, don't have.”
While the justices conceded that allowing TV coverage of their arguments would help people understand how the court operates, they contend that education isn’t their job.
“I think it'd be very helpful in getting more people familiar with how the court operates, but that's not our job to educate people,” Roberts said in 2019. “Our job is to carry out our role under the Constitution, to interpret the Constitution and laws according to the rule of law, and I think that having cameras in the courtroom would impede that process.”
With the court livestreaming audio of oral arguments for nearly two years now, however, that audio has been shared live by news organizations and also covered on the evening news. The justices have not expressed opinions on whether the broadcast of this audio has been detrimental. Court watchers say the only discernible difference they noticed from before this practice is sometimes arguments last a little longer than before.
“There have seemed to be almost no technological difficulties or issues with the media pools from the livestreaming, and in our minds, it hasn’t been disadvantageous that arguments now run a little longer on average than in years past,” the attorneys advocating for permanent livestreaming wrote. “Critically, decorum has been maintained throughout.”
As many of her predecessors were asked at their confirmation hearings, it is likely Supreme Court nominee Ketanji Brown Jackson will get at least one of these questions from the Judiciary Committee next week. Nominees have previously been noncommittal when answering this question, and have only promised to keep an open mind on allowing cameras at the Supreme Court.
Some think the qualms of the justices over cameras is a generational problem and inevitably cameras will come to the court once the next generation takes the bench.
“Eventually, TV will be there because, as we know, generations will grow up and they just won't understand why it isn't there, alright,” Justice Stephen Breyer said in 2019. “But the judges who are there now are not in that generation, and so it will be a while.”
Follow @KelseyReichmann
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