Lights, camera, action

Opinion: July 13, 2010 at 12:00a.m.

By Amanda Frost

Los Angeles Times

Supreme Court nominee Elena Kagan artfully dodged some of the Senate’s tough questions at her confirmation hearings last week, but she was unequivocally enthusiastic when asked her view on televising Supreme Court arguments. “It would be a terrific thing to have cameras in the courtroom,” she declared.

Kagan’s answer was as welcome as it was surprising. Supreme Court justices have long opposed the idea of broadcasting oral arguments — the hourlong sessions in which attorneys present their cases before the nine justices. Not only have the justices barred cameras from the courtroom, they have also delayed release of audiotapes of most oral arguments for months, ensuring that people seldom hear them while they are most relevant. Oral arguments provide one of the few real opportunities for the public to observe the court at work, and yet the justices continue to limit public access to just a handful of lucky observers who line up in time to get a coveted seat in the small courtroom.

Right direction

True, the Supreme Court has moved a bit in the right direction. Over the last decade, in a handful of important cases, it has released audio of some arguments for immediate broadcast. For example, in Bush v. Gore, the court immediately released the audio of oral arguments. It also did so in cases challenging the constitutionality of affirmative action programs, the ban on so-called partial-birth abortions and the detention of prisoners at Guantanamo Bay.

But even that trend of transparency has died out this past term, when the court repeatedly denied the media’s requests to broadcast the arguments in such major cases as McDonald v. Chicago (in which the court struck down the city of Chicago’s ban on handguns as a violation of the 2nd Amendment) and Sullivan v. Florida (in which the court struck down life sentences for minors).

Televising oral arguments, or at the very least immediately releasing audio, is long overdue. The Supreme Court sits atop the third branch of government. The nine justices decide vital questions about the meaning of the Constitution and federal statutes. Their decisions can alter the very structure of our government, move stock markets and change the nature of our relationships at work and even in the home. The American people — indeed, the citizens of the world — have a right to hear the justices debate the merits of each case with the advocates for the parties.

Risks

Yes, there are risks to televising Supreme Court arguments. Some advocates, perhaps even some justices, will occasionally speak in sound bites at the expense of thoughtful analysis, thereby changing the nature of the arguments themselves. But the opportunities for pandering are limited. After all, a Supreme Court argument is not a trial — there are no witnesses to cross-examine, no evidence to introduce, and many cases turn on narrow, technical questions about terms in statutes and regulations that would be hard for even the most manipulative reporter to exploit.

The benefits of broadcasting oral arguments far outweigh the costs. Oral arguments can educate the public about the role of the court in our government, as well as about the substantive issues at the heart of each case.

Amanda Frost is a professor of law at American University Washington College of Law. She wrote this for the Los Angeles Times. Distributed by McClatchy-Tribune Information Services.