Television enters high courts in other countries
One topic likely to arise in Elena Kagan's confirmation hearings is her position on televising U.S. Supreme Court arguments. Court watchers have scrutinized her comments at the 9th Circuit Judicial Conference in 2009, when she spoke briefly but favorably about televising the Court, suggesting that the public would get to see "an amazing and extraordinary event" if arguments were televised. Still, like justices Samuel Alito Jr. and Sonia Sotomayor before her, who had positive experiences with televised arguments but demurred during their confirmation hearings, Kagan is likely to temper her enthusiasm and wait to confer with her new colleagues before taking a firm position.
If confirmed, she may find that the balance on the Court on this issue may be shifting. The staunchest opponent, Justice David Souter, who famously pronounced that the day a television camera comes into the Court "it's going to roll over my dead body," has left the Court. And justices Alito, Sotomayor, Ruth Bader Ginsburg and Stephen Breyer have all expressed some willingness to reconsider the Court's long-standing opposition to televising or videotaping arguments. Still, strong opposition remains. Justice Antonin Scalia has often expressed his concerns about televising arguments, and justices Anthony Kennedy and Clarence Thomas have repeatedly testified against TV coverage at congressional committee hearings.
The Court's position is at odds with the views of the American public, which strongly favors televising Supreme Court proceedings, according to recent polls. A survey conducted by C-SPAN in September 2009 showed that 65% surveyed favored TV coverage, as did more than 60% of the respondents in a survey conducted in January-February 2010 by PublicMind, a project affiliated with Fairleigh Dickinson University. C-SPAN Survey, "What Americans Know About the U.S. Supreme Court and Want Changed About the Court," Sept. 24, 2009, http://tinyurl.com/ya3k54l. PublicMind Poll, "Public Says Televising Court Is Good for Democracy," March 9, 2010, http://tinyurl.com/28aem7l.
C-SPAN has been seeking to broadcast Supreme Court arguments for decades, beginning in 1988, when it first offered to broadcast every argument, unedited and in its entirety. Chief Justice William Rehnquist denied the request, as did Chief Justice John Roberts Jr. when C-SPAN made the same offer in 2005. See Bruce D. Collins, "C-SPAN's Long and Winding Road to A Still Un-Televised Supreme Court," 106 Mich. L. Rev. 12, 15 (2007), http://tinyurl.com/2f8zxct.
Even as to audio recordings, the Court has granted only about half of C-SPAN's requests for immediate release of the audiotapes of significant arguments, and even fewer than that in more recent years. See http://tinyurl.com/233tlh9.
Legislation to require television coverage has been introduced in every session of Congress since the 105th Congress in 1997. There are two bills currently pending: S. 446 would require television coverage of "all open sessions of the Supreme Court unless the Court decides, by a majority vote, that coverage in a particular case would constitute a violation of the due process rights of one or more parties." S. Res. 339 contains the same substantive language as S. 446 but merely expresses the "sense of the Senate" that the Court should adopt such a policy, rather than requiring it. Both bills were reported out of the Senate Judiciary Committee by a 13-6 vote and are on the Senate calendar but are likely to languish, as did their predecessor bills.
The Supreme Court's intransigence on this issue is at odds not only with state appellate courts, which now almost uniformly permit cameras and television coverage of arguments at least on a case-by-case basis (see my column, "Appellate TV," NLJ, Sept. 17, 2007), but also with the Supreme Court's counterparts in other countries, several of which have recently embraced the idea of broadcasting their appellate arguments.
The Supreme Court of Canada has been a pioneer. In 1981, it allowed cameras to broadcast the announcement of its decision in the "Patriation Reference" case, which involved disputes between the federal and provincial governments over the adoption of an amended Canadian constitution. From 1993 to 1994, the Court allowed three high-profile cases—involving the right to assisted suicide, the deductibility of nanny expenses and gay rights—to be televised. Since 1997, the Supreme Court of Canada has allowed almost all of its cases to be broadcast by Canada's Cable Public Affairs Channel. In February 2009, the court also began live webcasting of its arguments, which it archives on the court's Web site as well.
In 2009, the United Kingdom made a striking break with tradition, establishing a new Supreme Court that was physically separated from the House of Lords, where the judicial function had previously resided since 1399. The new Supreme Court is the final court of appeal for all civil cases in the United Kingdom and for all criminal cases from England, Wales and Northern Ireland. Although cameras are not permitted in the lower courts in England, the new court announced that, from the outset, television cameras would record every case that comes before the court, which would be made available to any broadcaster that wanted to televise them. This policy of the United Kingdom's new Supreme Court was cited by Sen. Arlen Specter (D-Pa.) and others in support of their legislative efforts to get the U.S. Supreme Court to change its view.
As a practical matter, few cases have actually been broadcast in England, though some broadcasters have used recorded excerpts for news bulletins. The first appeal ever heard by the U.K. Supreme Court, A. & Others v. Her Majesty's Treasury, involved the government's freezing of assets of alleged terrorists without Parliament's involvement or approval. The argument in that case was not picked up by any broadcasters in England, but a 38-minute segment of the argument was broadcast in this country on C-SPAN. So, ironically, it was Americans who got to see the first argument in the new U.K. Supreme Court, even though they still cannot see televised arguments taking place in their own Supreme Court.
The European Court of Human Rights announced on June 25, 2007, that it would begin live webcasting all of its arguments. In his press release, the president of the court explained that "transparency of the Court's proceedings" would "ensure wider dissemination of [European Convention on Human Rights] case-law." Broadcasting the arguments, according to the president, would "act as a deterrent to Governments for whom publicity given to human rights violations is unwelcome," and "provide an example of transparent administration of justice as an important feature of the rule of law." European Court Of Human Rights, Press conference by the president of the court, June 25, 2007, http://tinyurl.com/23r8jk5. Similarly, the International Court of Justice in The Hague, Netherlands, allows cameras and television crews in the courtroom for the first five to 10 minutes of argument and, in addition, allows broadcasters wishing to cover more of the arguments or transmit them live to take direct feeds from the court's audiovisual system.
The growing openness of high courts to broadcast their proceedings extends beyond Europe and Canada. The Supreme Court of New Zealand allows TV coverage upon application for permission to broadcast or record its proceedings. If a party objects, the court determines whether to grant the application, but if no party objects within three days, the court deems the application to be approved. The court then provides the broadcasters with access to the court's own high-definition video feed, which includes individual cameras covering each of the five sitting judges and one camera covering counsel addressing the court. Given the length of oral argument in New Zealand's high court (there is no time limit on argument), broadcasts tend to be limited to excerpts from the highest profile cases.
Finally, the Supreme Court of Namibia recently made history, allowing TV coverage of an argument in the court for the first time. The case involved a challenge by several opposition parties to the outcome of the general elections to Namibia's National Assembly. The entire proceeding before the Supreme Court on May 31 was broadcast live on TV and radio.
Several U.S. Supreme Court justices, especially Breyer and Kennedy, have made a point of looking to the law of other nations in deciding certain constitutional issues. It may be time for the Court to look as well to the practices of the high courts of other countries in evaluating whether to allow expanded media coverage of its own proceedings.