While we at MassTortDefense usually focus on the results of appellate advocacy, earlier this  week saw an interesting debate about a process issue: whether the  U.S. Supreme Court  should be required to televise oral arguments.

Attorneys and judges with strong views on putting cameras in the high court  testified at a hearing before the U.S. Senate Judiciary Committee on Tuesday.  Speakers included The Honorable Mark Cady, Chief Justice of the Iowa Supreme Court, and The Honorable Anthony Scirica, Chief Judge
United States Court of Appeals for the Third Circuit.

Judge Scirica is not in favor of the Cameras in the Courtroom Act, which was introduced by Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa.  He addressed three concepts that merit consideration in this discussion—transparency, accessibility, and the respect among the branches that allows each to govern its own deliberations.  He argued that the Court is sufficiently transparent: it explains its decisions in detail. Traditionally this was done through the printed word; now it is done through the electronic word as well, with opinions available on-line as soon as the decision is announced. These opinions constitute are binding precedent on questions of federal law.  Dissenting and concurring opinions by other Justices highlight for the public precisely, and at times quite forcefully, where the members of the Court disagree. Even before a final disposition, where certiorari has been granted, its website links to the lawyers’ briefs so the public may read and download them. Of course, all Court sessions have always been open to the public. But the Court now provides same-day transcripts of oral arguments on its website.

Judge Scirica noted how some lower court judges feel that televisions in the court disrupt courtroom proceedings at least to some extent, while others believe it makes lawyers more theatrical (is that possible?).  Others suggested it may cause judges to alter their questioning during arguments. Many district court judges have also expressed concern over cameras’ effect on witnesses and jurors.

Bottom line, he suggested that the complexities of this issue underscore the considerable latitude that should be afforded the Supreme Court in determining its own internal procedures. Determining whether to televise proceedings goes to the heart of how the Court deliberates and conducts its proceedings.

Senator Leahy, however, stated that the time has come for the Supreme Court to voluntarily open their proceedings to the American people. The high court’s upcoming review of the Affordable Care Act, is a significant moment in our nation’s history and our understanding of our fundamental charter. This decision will affect every one of us in this country. “The American people deserve to know what is being said as it is being said,” he urged.

The publisher of the outstanding SCOTUSblog wryly noted that the Justices are among the few people in Washington not trying to get on television.  He suggested that televising proceedings would ultimately be good for the Supreme Court, but favored the approach of the Sunshine in the Courtroom Act of 2011, a bill he said demonstrates critical respect for the separation of powers by respecting the judiciary’s autonomy in choosing whether to implement cameras for use.