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  • Nancy S. Marder, The Conundrum of Cameras in the Courtroom, ___ Ariz. St. L. Rev. ___ (forthcoming 2012), available at SSRN.
  • Lisa T. McElroy, Cameras at the Supreme Court: A Rhetorical Analysis, ___ BYU L. Rev. ___ (forthcoming 2012), available at SSRN.

Television cameras in the courtroom probably have been debated since there have been cameras to bring into the courtroom, with periodic spikes in attention around high-profile cases–O.J. Simpson’s criminal trial or Bush v. Gore or this term’s Supreme Court arguments on the Affordable Care Act. In the past two decades, a communications revolution has turned that occasional spike in attention into a constant drumbeat. More attention from more outlets is focused on the federal courts, particularly the Supreme Court. And video is ever-more accessible, as people can watch on a multitude of devices in a multitude of places, and ever-less obtrusive, so courtroom actors can easily be recorded without knowing it.

Yet, as Nancy Marder puts it, “the revolution has been stopped cold at the steps to the U.S. federal courthouse.” And the Justices themselves have erected and manned the barricades–rejecting calls for more open and immediate coverage of oral arguments in the obviously unique ACA cases, fighting Congress over who wields power to decide whether to allow cameras, and even jumping into disputes over cameras in the lower federal courts in high-profile cases.

Two forthcoming articles attack the debate over cameras in the courts from different perspectives and reach somewhat different conclusions. Collectively they provide a valuable and thoughtful starting point for exploring these issues.

In The Conundrum of Cameras in the Courtroom, Nancy Marder presents the scholarly big picture, stating and responding to competing arguments from all sides of the camera debate. Marder also considers the conflicting values and principles motivating each point of view, values that must be accommodated while potentially pushing us toward a zero-sum game. While proponents of cameras promote ideals of public centeredness and open government, opponents (especially many federal judges) promote ideals of fairness to the participants in litigation, which demands giving them greater control of their courtrooms and proceedings. Marder suggests that cameras are inevitable in the federal courts, but that change should be incremental to balance the range of values. She commends an ongoing three-year pilot program in the lower federal courts, particularly in the appellate courts, so we can truly measure the effects of cameras and establish camera policies based on some empirical evidence. She also applauds preliminary steps already being taken, including posting transcripts and audio recordings, so the public, media, judges, and litigants all become accustomed to quicker access to proceedings. Ultimately, Marder suggests, change will come simply through a generational shift on the courts–judges and Justices who grew up with cameras, modern media, and social networking will be more receptive to such technology in the courtroom.

In Cameras at the Supreme Court, Lisa McElroy takes a firmer normative position–the Supreme Court should open its doors and tell its democratic story, which only can occur if the Court allows cameras to reveal the Court to the public. McElroy argues that the Justices’ opposition to cameras is a product of narrative, symbol, and myth, all of which they have seized and constructed around themselves and the workings of the institution. The “Court perpetuates an Oracle of Delphi-like mythology,” appearing as “mystical, majestic mouthpiece,” a rhetorical creation that the Justices do not want to surrender and that cameras presumably would undermine. McElroy employs narrative theory to reduece the problem to a debate over who controls and determines the public story: the Court, by tightly controlling what the public sees of the Justices and how and when it sees it, or the public, by evaluating with their own eyes and developing their own judgments about the Justices, the Court, and the federal judicial system.

Both articles contribute to a legal discussion that is only going to evolve and expand as technology evolves and expands. Indeed, the relevant legal issues are beginning to move beyond policy-preference questions of whether and when cameras are appropriate (the focus of both of these articles) to substantive constitutional questions of who makes those policy decisions and whose preferences prevail. Companion bills in the House and Senate would require the Supreme Court to allow cameras in all open sessions, subject to a veto by a majority of the Justices when deemed necessary to protect procedural due process. Such legislation raises compelling separation of powers questions over Congress’s power over the business of federal courts.

Both articles nod to, but do not elaborate on, one significant point in the cameras debate: Everything that the Justices hope to avoid by barring cameras is already happening without cameras. Consider the common concern that cameras will alter courtroom behavior of judges, lawyers, and witnesses, what McElroy calls the “Hawthorne” or “observation effect,” defined as alteration of behavior by subjects of a study due to their awareness of being observed. But courtroom actors, especially in high-profile Supreme Court cases, already are being observed and reported on extensively, their words recorded, analyzed, and quoted (or misquoted and taken out of context) for public consumption. The supposed harms that the Justices and other camera opponents highlight are an inevitable product not of cameras, but of public interest and coverage by the ever-expanding media, traditional and new.

Indeed, unless courtrooms are closed completely (which would violate well-established First Amendment law), there is nothing to stop intermediaries from conveying the content of what transpired in the courtroom in any number of specific, detailed ways. In the wake of thwarted efforts to televise the trial in the constitutional challenge to California’s ban on same-sex marriage, marriage equality proponents staged a reading of the trial transcript by a variety of Hollywood actors, including George Clooney, Brad Pitt, and Martin Sheen. A Cleveland television station used puppets to reenact testimony in a federal corruption trial.

Similarly, many of the “incremental” steps towards openness that Marder proposes–posting of transcripts and quick release of audio–already are in place. Yet we get the same out-of-context snippets and cults of personality that camera opponents emphasize. For example, the Court took the unusual step of posting same-day audio of the ACA arguments rather than waiting until the end of the week. Even without cameras, there was extensive coverage of Justice Scalia’s questions about requiring people to buy broccoli, proffering a favorite trope of ACA opponents. And the Republican National Committee produced a political advertisement using audio of the solicitor general’s halting introduction, although the recording was altered to make his pauses longer than they actually were.

What ultimately will settle the policy and scholarly debate over cameras in federal court–the question that Marder glances at but does not resolve head-on–is the appropriate conclusion to be drawn from the fact that we end up in the same place with or without cameras. One conclusion, which Marder considers, is that cameras are different than audio; thus, if audio presents problems, video is a step too far. The other conclusion is that there is no reason not to allow cameras and thereby provide the best, most complete image of the courts and the case, because adding cameras to the mix creates no problems or risks that aren’t already there. If the RNC could misuse audio in an advertisement, it makes no difference if it also can abuse video. If the press can report snippets of Justices’ questions, it makes no difference if the public can see the snippet of the questioning. In fact, by eliminating the filter of the media or other intermediate players, the cameras present a cleaner, unfiltered picture from which viewers can form their own perceptions and conclusions. That cleaner, unfiltered picture allows for a public-created narrative rather than a Court-created narrative.

And perhaps a more accurate narrative. The problem of the media filter was illustrated by the reporting of the ACA decision in June, when CNN and Fox, in the race to be the first to report, both erroneously announced that the individual mandate had been struck down after a too-quick reading of the slip opinion. True, the error was correct in a matter of minutes. But how much easier and more accurate it would be if everyone simply could have watched live audio and video of Chief Justice Roberts reading a summary of his opinion from the bench, hearing the decision from his mouth in real time.

This will be the scholarly, policy, and constitutional point of departure going forward. Marder’s and McElroy’s papers give that discussion a strong foundation to build on.

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Cite as: Howard M. Wasserman, SCOTUS in Focus: Two Takes on Cameras in the Federal Courts, JOTWELL (August 20, 2012) (reviewing Nancy S. Marder, The Conundrum of Cameras in the Courtroom, ___ Ariz. St. L. Rev. ___ (forthcoming 2012), available at SSRN and Lisa T. McElroy,Cameras at the Supreme Court: A Rhetorical Analysis, ___ BYU L. Rev. ___ (forthcoming 2012), available at SSRN),