To See or Not to See? Question of cameras in U.S. high court stirs legal debate

By Lynn Monson

Legal News

The latest call for cameras to be allowed in the U.S. Supreme Court is widely supported but likely will be met with the same rejection as similar arguments in recent decades, members of the local legal community say.

"It's hard to believe that this question hasn't been resolved long ago," said Ann Arbor attorney Doug Mullkoff. "It's amazing that one of the three equal branches of government remains shrouded, accessible only to reporters ... and tourists ... in the court's gallery."

Mullkoff stood at the front of that 250-seat gallery in 1989 when he argued and won a prisoner civil rights case focusing on whether lower courts had deprived his client of due process.

The television camera ban at the Supreme Court contributes to Americans' generally poor understanding of Constitutional law, Mullkoff said. The public would be fascinated to see the presentations and back-and-forth with the justices, who are "brilliant, extraordinary questioners." The twists and turns of the arguments are "intellectual first-rate stuff," Mullkoff said. "They're the most interesting, most exciting debates you could ever ask for" -- and they should accessible to the public to see in their entirety, he said.

Attorney David French of Hall Render in Troy takes a different stance, one that he acknowledges is probably the minority view among attorneys and certainly the minority view among members of Congress and legal scholars currently calling for the court to join the modern age of communication when it hears arguments on the national health care issue in March.

French said cameras would have been a non-issue when he argued a case before the high court, also, coincidentally, in 1989. He said he was so focused on the details of the argument, a successful appeal of an employment rights case involving the plaintiff's religious views, that a television camera would have had no effect.

Even so, French says, he understands the high court's reluctance to break its long-standing tradition prohibiting cameras. He said he agrees with the oft-cited "grandstanding" concern that attorneys, and even possibly some justices, would act differently if they knew their every word and action was being broadcast to millions.

"I think it would not elevate, in fact would detract, from the substance of the arguments," French said. "I think it's a very valid point why the court has thought the way they have for as long as they have. Just my own experience in dealing with attorneys: When the press is involved ... it just ratchets the level up in terms of people trying to make their case. ... It's really funny, when you see that cameras are on people, it has an effect."

French concedes that grandstanding is less of an issue before the Supreme Court than in lower trial courts because it is a short burst of discussion rather than days or weeks of trial testimony, but the greater good outweighs the benefits.

"The real purpose of the court isn't primarily to educate the public; it's to provide justice for the litigants," French said. "I think that's the paramount concern, and because that is, I think that has to be given more weight."

Written transcripts and audio recordings are available and the public can sit in the gallery during arguments, according to French.

"I'm a strong advocate of public access to the courts. If we didn't have open court proceedings, it would be disastrous. But that's a lot different than having actual cameras in there," French said.

Proponents of televising Supreme Court debates often cite the success of cameras in lower courts around the country, including Michigan.

Marcia McBrien, public information officer for the Michigan Supreme Court, said the state has been progressive in its views of making court arguments available to the public. Michigan Government Television, or MGTV, began televising Michigan Supreme Court oral arguments in 1996.

"I know that there are concerns in the federal court system, and in the states that don't allow it yet, that allowing broadcasts of court hearings will somehow compromise the quality of justice. We certainly have not had that experience," McBrien said. "And as a matter of fact, we think that allowing film and electronic coverage gives the public a valuable window into court proceedings that they might not otherwise have. Because how practical is it for people to drive up here to Lansing to see the Supreme Court in action?"

Like many local courts around the state and country, the Washtenaw County judicial system has embraced new technologies. It makes digital video and audio recordings of every hearing and trial, and it uses the Internet to hold real-time hearings with certain defendants or witnesses, for example those who are hospitalized or undergoing a mental health hearing.

The county courts are old hands at dealing with outside requests for television coverage. Judge Donald Shelton, chief of the 22nd Circuit Court and Washtenaw County Probate Court, says the county receives requests several times a year, more often for sentencing than for entire trials. One television camera is allowed on a first-come, first-served basis and that media outlet must share the video feed if more than one wants access. Cameras aren't allowed to show jurors during jury trials and there are other procedural rules to limit disruptions, but the courts have been flexible in accommodating public access, Shelton said.

Several years ago, when a defendant was tried after a 35-year-old murder case was reopened, national media asked for special access. Court TV, now called truTV, used the county's live video feed and CBS News was given permission to install unobtrusive new technology. In a corner above the courtroom, CBS built a small wood partition that contained a tiny camera, only three-quarters of an inch wide, which silently panned around the courtroom for the trial.

"We've never had in this circuit any sort of problem or disruption with video coming in," Shelton said. "I think the role of the court is to try to make sure that the process ... of media access... to trials and court proceedings doesn't interfere with or affect the participants. That's why we've structured the rules the way we have."

Mark Totten, a Michigan State University assistant professor of law specializing in criminal and constitutional law, said the Supreme Court's continued reluctance seems, strangely, to ignore the very different formats of trial and appellate courts. Criminal cases in the trial courts face a larger array of potential procedural problems, so camera coverage needs to be closely controlled: The many rights of defendants, the privacy of jurors, the possible chilling affect for witnesses who might be intimidated by television coverage, and the longer duration of trials, which provide ample opportunity for attorneys inclined to play to the cameras.

"But by the time a case gets to the Supreme Court, about all of these concerns disappear," Totten said. "All you have at the appellate level ... it's just lawyers and justices."

Federal courts "occupy an uneasy place in our legal system," Totten said. Because federal judges are appointed, rather than elected like state court judges, they are easy targets for those who say their decisions are politicized and they have too much power. That makes the need for accountability and transparency all the more important in those courts, he said. And since the U.S. Supreme Court is the highest non-elected position in our Constitution, it's even more important in that court of last resort.

If television coverage can help Americans understand the workings and decisions of the court -- and the evidence is overwhelming that it would, Totten said -- then it should be implemented.

"I think the court should go as far as it can to allow the people to watch every move -- even from the comfort of their living rooms," he said.

University of Michigan law professor Len Niehoff, who teaches media law and a course in Supreme Court arguments, said many of the justices' arguments against cameras are perplexing and sometimes contradict positions the court has taken in cases involving public access in other facets of American life.

The First Amendment would prevent a law declaring that "No one can any longer hear what the president of the United States has to say other than through written materials," Niehoff said, yet that is in essence the policy that the court maintains for its business.

"The thing that I think is most puzzling to people is that ... a lot of the arguments sound very paternalistic," Niehoff said. "The justices are concerned that people are only going to get snippets of information, or that people are going to be more interested in the personalities than the actual merits of the case. ... Those arguments have been advanced to the court itself in connection with other kinds of access issues, and the court has generally not found them very persuasive as to anybody else.

"The general assumption around the free flow of information in our society is that people are supposed to toughen up and take a few bumps and elbows in the process," Niehoff added. "Part of that is a higher level of exposure and access than many people are comfortable with. And it seems to some people a contradiction for the court to insulate itself from those same forces."

Chief Justice John Roberts has advocated for the court to retain its unique status among courts nationally and internationally -- the so-called "exceptionalism" argument.

"It's a little hard to understand how one derives from that principle the idea that the court should be less accessible to people," Niehoff said. "One would think that the more important an institution, the more important it is that it be visible and that it do its work in public."

There's also the issue of a public perceiving that the justices play politics, particularly in cases such as Bush v. Gore when the outcome of an election was in doubt. If the public could have witnessed the arguments in that case, Niehoff said, they would have seen a court more focused on upholding the Constitution than playing politics.

"I think the question here is what you think about the role of mystery in public institutions," Niehoff said. "If you think that a little mystery is good, that it actually adds to the legitimacy of the court to follow some very old traditions, to sort of present in a way that is more removed from the political fray, to offer up a conception as an institution that is above mere bickering, then cultivating some of that makes a certain amount of sense to you.

"If you're a person who believes that this is simply one of the three branches of government at work and that people have an interest in seeing that work done, and being able to see it in a real-time fashion, then you're going to tilt in the opposite direction."

Niehoff said he doesn't think the Supreme Court will yield to the current push to open the court when it hears the health care arguments in March, but he senses changes may come sometime soon. He notes that with the addition of two new justices in the last few years who grew up in the television age, the court's view may begin to swing toward allowing access.

"I think the forces of social change are catching up with the court here," Niehoff said, citing the public's new expectations for having immediate, real-time information about everything from legal decisions to war developments. "If the Supreme Court gets too far behind that curve -- and I think it already is -- it not only doesn't help its legitimacy but it starts to undercut it. ... I just think there will come a point at which the court will conclude that the public perception that the court is political is being aggravated by an inability to see how it actually conducts business. And I think that when the court reaches that conclusion, then it would have very grave concerns about continuing along those lines."

Published: Wed, Dec 7, 2011

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