The case for sunlight

In the spirit of transparency, the U. S. Supreme Court should join the 21st century and allow TV cameras to air the impending oral arguments on the constitutionality of the health reform law.

C-Span, in a Nov. 15 letter to Chief Justice Roberts, rightfully contended that a live broadcast of the historic arguments – spanning five and a half hours, as opposed to the single hour devoted to the average case – would well serve the public interest, if only because the health reform law itself is so uniquely consequential. In Brian Lamb’s words, “It is a case which will affect every American’s life, our economy, and will certainly be an issue in the upcoming presidential campaign.”The high court has responded with characteristic silence, which befits its august and Olympian self-image. Even though the highest courts in 47 states (as well as Britain and Canada) allow their proceedings to be televised, this long-established practice has long been deemed by our top nine brethren to be an intrusion on their contemplative privacy. As Justice Kennedy recently remarked, “We operate on a different time line.”Yeah, somewhere around 1950.They should let the cameras in, already. The public certainly supports the idea; in a 2009 Gallup poll, 63 percent of Americans said yes to high court TV. And the yes camp spiked to 80 percent when respondents were told that the chamber has only 250 seats. Granted, the justices have no obligation to follow public opinion. The real problem is that their own best argument for no cameras is actually the best argument for letting them in.Their third-tier complaint is that TV cameras would rob them of their anonymity – an odd argument, given the fact that they got to the court amidst the glare of exposure during lengthy confirmation hearings. Their second-tier argument is that TV cameras will inspire the lawyers to utter pithy soundbites – an overrated concern, given the fact that the justices currently release audio feeds of all oral arguments, and that all pithy soundbites (such as they are; legal arguments don’t inspire soundbites) already show up in the newspapers.No, their best argument is that the high court is so exceptional, so powerful, so mysterious in its workings, so removed from the political realm, and so unlike any other government institution, that by definition TV cameras would diminish it. As Justice Kennedy once remarked, “We teach, by having no cameras, that we are different.”But this is actually the best argument for transparency. A governmental institution with such sweeping power by definition warrants more public scrutiny. Heck, maybe the viewer would even come away with more respect for the intricacies of judicial jousting, and enhanced respect for the massive preparation required of lawyers who practice in such a pressurized setting. During a speech last summer, Justice Kagan recalled her stint as U.S Solicitor General, watching high court proceedings: “Everybody was so prepared, so smart, so obviously concerned about getting to the right answer. I thought, ‘If everybody could see this, it would make people feel so good about this branch of government.'”As the late Justice Brandeis once said, sunlight is the best disinfectant. And even though the dueling spinners on MSNBC and Fox News would cherry-pick different oral exchanges on the constitutionality of the health care law, we’d all have access to the full context.Not that any of these sentiments will hold sway, however. C-Span seems doomed to disappointment, as are most Americans. The now-retired Justice Souter once harrumphed, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.” He need not have worried; as Justice Roberts remarked last spring on the camera issue, “We move slowly but surely and on a stable basis.” By that measure, even the current brethren will be dead before the sunlight finally shines.       ——-Follow me on Twitter, @dickpolman1