In a few days, the U.S. Supreme Court will play host to a momentous showdown over the powers of the federal government. The courtroom is not large, with room for just 400 or so, sending Washington power brokers scrambling for access. The Wall Street Journal has declared that the oral arguments over President Obama’s signature health care law are “the hottest ticket of the season,” and Bloomberg Businessweek described tickets to the arguments as “the ultimate get this year in the nation’s capital.” Upon receiving his seat confirmation, reporter Jamie Dupree exclaimed, “Christmas came early.” Connections as tenuous as “my-colleague-is-married-to-a-Justice’s-cousin” are being pulled, sometimes successfully. Meanwhile, the unconnected masses, who are competing for only about 50 seats, are paying $36 an hour to rent human beings to hold their spots in the public line that started forming 72 hours in advance.
Public interest in the case, stoked in part by the Court’s extravagant grant of six hours to the arguments, is so high that the Court made an exception to a policy it just put in place, announcing that it will release audio recordings of the health care arguments within a few hours. (My cynicism about that policy is captured here.)
In short, whatever the merits of the cases themselves, the public’s engagement with the constitutional debate that will take place at the Supreme Court next week is rare.
But perhaps no amount of public interest can overcome the Court’s longstanding squeamishness about televising its proceedings, or even video-recording them for posterity. The Court has issued no response to C-SPAN’s request to film the arguments, essentially denying the request by implication. That means that the 400 lucky souls in the courtroom will be the only ones ever to bear witness to the proceedings.
Of course, it didn’t have to be this way, and the drama of the occasion has spurred another iteration of ink-spilling over the everlasting “cameras in the courtroom” debate. (For some installments from this latest round, see here, here, here, here, here, and this blog post.) I’ve followed this debate for almost a decade now. I know the arguments on both sides well. At this point, I could probably rehearse them in my head like a “Who’s on First” routine. Candidly, none of the arguments supporting the Court’s television blackout impresses me much. But I’m not here to rehash the debate, at least not in this post.
Instead, I’m here to lament what will be lost to history when the Court recesses on Wednesday. It pains me that no one, ever again, will be able to witness next week’s three-day summit on the proper roles of Congress and the federal courts. This is not information that will eventually be released in a Justice’s papers after he or she dies. It is as ephemeral as any other second of any other day.
Imagine what it would be like to go to C-SPAN’s website and pull up a streaming video of the arguments in Brown v. Board of Education or Marbury v. Madison—to watch the Justices’ reactions and experience the arguments as they were presented in their time. It would be a historian’s dream. Think of the documentaries! The potential for enriching high school civics! While librarians and archivists fret over the decay of modern digital information, this is a completely avoidable instance in which the information is never recorded in the first place.
Well, you say, the audio recordings will be released almost immediately—why isn’t that good enough? Does video really add anything? I answer with an emphatic YES, for all the reasons that video killed the radio star in 1981. The audience for video is simply bigger. And it bears emphasis that audio is just one sliver of the information transmitted during an argument. Yale’s legal writing guru Rob Harrison confesses that he almost never correctly predicts the winner of each semester’s Moot Court finals for a simple reason: he can’t see the advocates’ faces from the audience. Facial expressions are a crucial component of communication; if they weren’t, why was anyone excited about FaceTime’s debut on the iPhone? Heck, didn’t a silent film just win Best Picture? While any one Justice is speaking, the other eight are communicating with their faces, body language, and silent reactions. Anyone who has observed the Court from the audience can attest to that. (Students of the Court could also cite to Scott v. Harris as an example of the unique salience of video evidence.)
It’s a shame that law schools won’t assemble their student bodies to watch the arguments next week. And it’s a shame that the Court refuses an opportunity to burnish its reputation as a highly intelligent and responsible branch of the federal government when the public is paying the most attention. But, for me, the bigger shame lies on the horizon.
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At the risk of imposing a political valence on this issue, I see a number of parallels between the Court’s intransigence on video recording and the ultimately unsuccessful defense of the “don’t ask, don’t tell” policy. In each case, advocates for the status quo conjure dire predictions of the effects of changing the policy, even though there is next-to-no empirical evidence to support those predictions. Admittedly, the precise impact of the change is impossible to know ex ante, but comparisons to other jurisdictions that have changed their policies give no cause for concern. The debate pulses year after year, each side repeating the same tired arguments: the status-quo advocates parade their unsupported predictions, and the change-agents invoke lofty American ideals (equality in one case, transparency in the other). At bottom, the status-quo advocates argue against a change that they know is almost certainly inevitable: delay is their victory. And so, with each day’s delay, the anachronism of the old policy becomes more obvious, until, at least in DADT’s case, the change is made. The dire predictions do not come to pass. The former foes of the policy-change greet it with a shrug and move on, while the rest of the country exhales and asks, “What took so long?”
The answer, in the Court’s case, is captured by the turtles carved into the base of the columns inside the Court. In a city where progress is slow, the Court moves slower.