Will cameras ever roll in high court?

Tuesday, May 12, 2009

WASHINGTON — Supreme Court Justice David Souter’s retirement this summer will remove an obstacle — literally and figuratively — in the path toward broadcast access to Supreme Court proceedings.

It was Souter, after all, who famously warned in 1996 that if a camera arrived at the Supreme Court to record and broadcast oral arguments, it would “roll over my dead body.”

But access advocates are divided over whether Souter’s departure will make any real difference, given that none of the other eight justices has shown much enthusiasm for the idea either.

That reality was confirmed when Justice Samuel Alito Jr. spoke to the Alaska Bar Association May 7. According to an account in the Juneau Empire, Alito indicated he agreed with Souter’s strong opposition to cameras. Other justices do too, he said, though — in a reference to the “dead body” quote — Alito added, “Most of us are not willing to go quite as far as David was.” When he was a judge on the 3rd U.S. Circuit Court of Appeals, Alito favored camera access, but now on the Supreme Court he has joined the opposition camp.

“We wouldn't be optimistic” just because of Souter’s departure, says C-SPAN Vice President Bruce Collins, a longtime advocate for camera access. “When he said ‘over my dead body,’ he wasn't alone. There are others who feel the same way.”

C-SPAN CEO Brian Lamb agrees. “When Justice Souter leaves the Court it really only means one thing, that one of the nine justices publicly opposed to television is no longer there,” Lamb told the Houston Chronicle.

Justice Clarence Thomas recently told a congressional committee that the Court has discussed the issue many times, with no consensus in favor of access. Justices John Paul Stevens and Ruth Bader Ginsburg are the only members of the high court who have shown any signs of support, and that support seems tepid or conditioned on gavel-to-gavel broadcast — something that would be impossible to require.

“This is not a 5-4 decision,” said Collins. “You need a leader who really wants it, or else unanimity.”

That said, the departure of Souter may make it easier for the Court, which values its collegiality, to reopen the discussion without offending one of its members. Chief Justice John Roberts Jr., asked about the cameras issue in 2007, quoted Souter’s “dead body” statement and added, “We all like Justice Souter.”

For the same reason, with Souter gone the Court may open up in other ways that he may have opposed. At a 1999 congressional hearing, Souter rejected the idea of videotaping arguments for archival purposes, to be made public at the end of each term. Allowing that, Souter said, would be “the camel’s nose under the tent” that would lead inexorably to live broadcasts.

With Souter gone, the Court might also be less stingy about allowing same-day release of audiotapes of oral arguments. During the current term, the Court permitted such a release only once, while rejecting broadcasters’ pleas in seven other cases.

Former ABC News Supreme Court correspondent Tim O'Brien is hopeful about television access for the simple reason that two of the most vocal opponents of cameras — the late William Rehnquist and soon-to-be-retired Souter — won’t be part of the internal debate. “It's so ludicrous not to have cameras there,” said O'Brien, who teaches law at Nova Southeastern University in Florida. “Even if only one in a hundred of our fellow citizens were to watch, that would be 3 million of us who stand to be enlightened and enriched.”

Ron Goldfarb, author of a 2000 book on televising court proceedings, says, “I believe televising Supreme Court arguments is inevitable, and wise. Souter was-oft-quoted, but not the political force on this (or any other) issue. Rehnquist was the fierce partisan.”

Goldfarb adds, “Roberts is likely to be conservative, but might change if the times and mores move in that direction. It will take ‘change,’ but now transparency is popular. If fresh personalities — and strong ones — come on the Court, it could happen while we are alive.”

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