New High Court Term, Same No-TV and Tape-Delay Rules
Arguments will be invisible, and hard to hear, even for member of Congress with eyes on landmark redistricting case
The Supreme Court term starting next week promises to be among the most consequential in years, but it’s guaranteed to be as invisible as ever to the American citizenry.
The campaign to get cameras in the courtroom has almost totally foundered. Instead, some open-government advocates have started campaigning to simply hear oral arguments in real time — so far, also with no success.
Even smaller steps, including same-day release of the audio tapes in headline-grabbing cases and newly free and online access to court filings, are the biggest victories for those aspiring to see sunshine drench the pinnacle of the federal government’s third branch.
After two decades of trying, the small bipartisan band in Congress that’s been pressing to drag the high court into the television age has gained no traction.
There’s no sign that is about to change, even though a theoretically ripe moment is at hand to spur legislative momentum.
On Tuesday, the justices will consider the limits of partisan motivation in gerrymandering. The potential landmark case poses a direct threat to dozens of lawmakers, those representing House districts with the sorts of contorted lines the justices could find unconstitutional. And yet these people with a vested interest in the outcome — like legions of citizens before them — won’t be able to witness their fate being deliberated unless they’re among the lucky few who snag a seat.
There are fewer than 400 chairs in the room, and most go to people with direct links to the cases being argued, dignitaries and other connected types. At most, a quarter of the seats — at the back — go to members of the public. Many people queue up days in advance of the biggest cases, knowing they’ll be admitted to glimpse only a three-minute sliver of the proceedings.
There are no reserved spots for members of Congress, some of whom have gone to the trouble of becoming members of the Supreme Court bar so they can claim seats for oral arguments. The rest must make do, like the rest of the country, with media coverage until the audio recordings are made available to the world.
Some members of Congress are sure to grumble about having to wait even that long to gauge for themselves how the court might be leaning on the questions of whether political mapmaking can become too partisan, and what the test for that is — especially Justice Anthony M. Kennedy, whose writing in some earlier redistricting cases has positioned him to be the swing vote yet again. (Now 81, there’s also keen interest in any telltale signs Kennedy could make this his final term.)
A time lag
After importuning by the press and “good government” groups, the justices have allowed later-the-same-day release of the tapes only two dozen times — for such obvious history-in-the-making moments as the cases, most recently, that upheld the 2010 health care law and found a constitutional right to same-sex marriage.
Otherwise, die-hard fans of litigation at the apex must wait until the weekend to listen in. But even that timetable is a significant Supreme Court concession to modernity. Before 2010, the customary cooling-off period lasted all the way until the summer after the cases had been decided.
That evolution is just one of the ways the high court has lagged in its embrace of technology, trailing not just the rest of the world, but the other courts as well.
The top appeals benches in all 50 states allow some cameras in their courtrooms. And 10 of the dozen regional federal appeals courts make public their oral argument audio files on the same day, with a handful considering emulating the 9th Circuit’s policy of permitting live audio as a matter of routine. (That court, which hears appeals from most western states, also permits live video, but only a couple of the other circuit tribunals are actively contemplating that.)
Also, for a couple of decades now, all the federal appeals and trial courts have had electronic filing and online access systems for their paperwork. But the Supreme Court is joining them only in November, close on the heels of unveiling a more user-friendly website. Until now, obtaining a copy of a legal brief or motion required a trip to the Greek Revival temple across the street from the Capitol to make photocopies — or else waiting for the media or one of the court-watching websites to post the hottest documents online.
“There have been some victories at the margins to be pleased about, but they’ve been on pretty inside-baseball stuff,” said Gabe Roth, the executive director of Fix the Court, which presses for more transparency at the Supreme Court. “For curious citizens, though, by far the greatest victory would be the ability to actually see the court for themselves.”
But it is virtually unimaginable Congress will start a balance-of-powers fight compelling the Supreme Court to televise its public proceedings — three decades after the Senate (in 1986) followed the House (in 1979) by installing cameras and then permitting the public (through C-SPAN) to look through them.
Bills opening the court to TV have been introduced in each Congress since 1999 but have never been out to a vote. Co-sponsorship of this year’s versions is so far limited to just 11 House members and four senators.
The justices don’t want the legislators across First Street to tell them what to do, of course, especially when so many on the court have blatantly flip-flopped and now flatly oppose doing something they once endorsed enthusiastically.
Just last week, Justice Sonia Sotomayor told a civics education conference she’s become opposed to cameras in her courthouse, fearing their presence would make oral arguments less serious and more showman-like. As a nominee eight years ago, she told the Senate Judiciary Committee she so liked being part of a TV experiment on her appeals court that she would work to persuade her new colleagues to give it a try.
Five other justices signaled support for televising the proceedings at their confirmation hearings, but most of them have also publicly backed away from the idea since joining the court. Some expected the death of Justice Antonin Scalia, a tart critic of televised proceedings, would shift the court’s collective position toward more openness.
But that hasn’t happened. His successor, Neil Gorsuch, however, testified in March that he would come to the court with “an open mind” on courtroom cameras, volunteering, “It’s not a question that I confess I’ve given a great deal of thought to.”
The public has thought about the question, and a poll commissioned by C-SPAN just before the Gorsuch hearing found 76 percent support for putting oral arguments on TV.
In May, more than 1.5 million people tuned in during the middle of the day when the 9th Circuit livestreamed its oral arguments on President Donald Trump’s travel ban.
The high court’s consideration of whether those immigration restrictions amounted to religious discrimination was supposed to be one of the blockbuster cases of this term. But the oral arguments were postponed indefinitely Monday, after a new presidential proclamation altered the travel curbs to include two countries that are not majority Muslim.
Even if Trump’s immigration policies never get back on the docket, the roster is still full of high-profile cases now that Gorsuch’s arrival has produced a bench with all nine seats filled for the first time in more than a year.
In addition to the redistricting case, the court will also decide whether the police can use cellphone location records to track suspects without obtaining a warrant; how long undocumented immigrants should have to wait before a court date; if workers can be barred from bringing class-action lawsuits against their employers; whether federal limits on sports betting violate states’ regulatory authority; and whether merchants can cite their First Amendment rights of religious or artistic freedom as a reason for refusing service to same-sex couples.