[Vision2020] We're Too Dumb

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

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February 18, 2013
Bucking a Trend, Supreme Court Justices Reject Video Coverage By ADAM
LIPTAK<http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html>

WASHINGTON — Justice Sonia Sotomayor, populist, revealed a paternalistic
streak this month, announcing that she had rethought her enthusiasm for
video coverage of Supreme Court arguments.

At her confirmation
hearings<http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?pagewanted=all&_r=0>in
2009, she said she was in favor of letting citizens see their
government
at work. “I have had positive experiences with cameras,” she said. “When I
have been asked to join experiments of using cameras in the courtroom, I
have participated. I have volunteered.”

She was singing a different tune a couple of weeks ago, telling
Charlie Rose<http://www.charlierose.com/view/interview/12765>that most
Americans would not understand what goes on at Supreme Court
arguments and that there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the
briefs or the legal arguments to appreciate what the court is doing,” she
said. “They speculate about, oh, the judge favors this point rather than
that point. Very few of them understand what the process is, which is to
play devil’s advocate.”

As a descriptive matter, she was right: making sense of a Supreme Court
argument without substantial preparation is hard. But Justice Sotomayor’s
approach also sounds like an intellectual poll tax that could just as well
justify limiting attendance in the courtroom to people smart enough and
diligent enough to know what is going on.

The court’s newest member, Justice Elena Kagan, has also done an
about-face. At her confirmation
hearings<http://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY2.pdf>in
2010, she said video coverage “would be a great thing for the
institution, and more important, I think it would be a great thing for the
American people.” Two years later, she
said<http://www.annarbor.com/news/supreme-court-justice-elena-kagan-discusses-the-serious-and-not-so-serious-workings-of-the-high-cour/>she
now had “a few worries, including that people might play to the
camera”
and that the coverage could be misused.

Even as the Supreme Court is digging in its heels, nations with legal
systems similar to the one in the United States are moving in the other
direction.

The Supreme Court of the United
Kingdom<http://www.supremecourt.gov.uk/index.html>,
which was formed in 2009, allows camera coverage. Last month, Lord Chief
Justice Igor Judge, the head of the judiciary for England and Wales,
announced<http://www.guardian.co.uk/law/2013/jan/30/tv-cameras-appeal-court-warning>that
cameras would be allowed in appeal courts starting in October, after
judges receive media training.

Lord Judge agreed with Justice Sotomayor, to a point. “I suspect John and
Jane Citizen will find it incredibly dull,” he told a committee of the
House of Lords. But that did not seem to him a reason to prevent them from
trying to make sense of the proceedings.

Arguments in the Supreme Court of Canada <http://www.scc-csc.gc.ca/> have
been broadcast since the mid-1990s, and more recently they have been streamed
live<http://scc-csc.gc.ca/case-dossier/cms-sgd/webcastlive-webdiffusiondirect-eng.aspx>on
the Internet.

Owen M. Rees, the court’s executive legal officer, said the experience had
been positive.

“The filming of the Supreme Court of Canada’s hearings has increased the
public’s access to the court and its understanding of the court’s work,” he
said. “Of course, each court must make its own evaluation of whether
introducing cameras in the courtroom would be appropriate.”

In a speech last
year<http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2012-01-31-eng.asp>,
Chief Justice Beverley
McLachlin<http://www.scc-csc.gc.ca/court-cour/ju/mclachlin/index-eng.asp>of
Canada suggested that the American court system might have things
backward.

In the United States, cameras are commonplace in state trial and appeals
courts, and the lower federal courts have experimented with them. Only in
the Supreme Court is there categorical resistance.

“The general practice in Canada is precisely the opposite,” Chief Justice
McLachlin said. “Canadian trial courts have generally not permitted their
hearings to be broadcast on television, where witnesses are involved.”

Lord Judge made a similar point, saying he would draw the line at criminal
trials before juries, for fear that witnesses might be intimidated.

A pair of new law review articles tries to make sense of the gaps between
the American and international approaches.

In one of them <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1969115>,
in The Arizona State Law Journal, Nancy S. Marder, who teaches at the
Chicago-Kent College of Law at the Illinois Institute of Technology, noted
correctly that “most countries do not allow cameras in their courtrooms”
and concluded that “cameras in federal courtrooms will do more harm than
good at this time.” In an interview, she said she worried about a culture
in which “everything becomes entertainment, focusing on the gaffe.”

But Kyu Ho Youm, a First Amendment scholar at the University of Oregon’s
journalism school, said the United States Supreme Court was betraying a
distinctively American commitment to free expression and access to
information.

“The U.K. and Canadian justices had their own worries and concerns when
they opened up their doors to cameras,” he
wrote<http://www.lawreview.byu.edu/articles/1360814461_10.youm.fin.pdf>in
The Brigham Young University Law Review. “However, these justices now
concede they were wrong.”

“Many people outside the U.S. are wondering,” Dr. Youm said in an
interview, “why the U.S. is so calcified in its thinking about cameras in
the Supreme Court.”

Tony Mauro, a reporter with The National Law Journal and a student of the
arguments for and against cameras, proposed an answer in an
article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945361>in
2011. “The root of almost every objection the justices have expressed
about camera access,” he wrote, “is the justices’ deeply held feeling that
their court is exceptional — unlike any other public institution.”

Mr. Mauro was onto something. At a judicial conference in
2011,<http://www.c-spanvideo.org/program/300203-1>Judge J. Harvie
Wilkinson III of the federal appeals court in Richmond,
Va., asked Chief Justice John G. Roberts Jr. for his position on cameras
and got a telling response. The chief justice had been considering the
international context.

“The Supreme Court is different,” he said, “not only domestically, but in
terms of its impact worldwide.”

Chief Justice Roberts said he worried about the effect that cameras would
have on lawyers and, perhaps more important, on the justices, who may have
less self-control than their counterparts abroad.

“We unfortunately fall into grandstanding with a couple of hundred people
in the room,” the chief justice said.

This article has been revised to reflect the following correction:

*Correction: February 18, 2013*

An earlier version of this article reported incorrectly that an article by
Nancy S. Marder would be published in The Brigham Young University Law
Review next month.  The article will be published in The Arizona State Law
Journal later this month.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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