Courts, Cameras, And The Public's Right To Know
This week, when the Supreme Court hears an historic six hours of oral arguments about the constitutionality of the health insurance reform law, only a few dozen citizens at a time will be allowed into the chamber to watch and listen.
The Court’s decisions on the Affordable Care Act will decide whether the people’s elected representatives have the authority to regulate the nation’s health insurance market to make health care more affordable, to hold insurers accountable and to rein in runaway and unsustainable medical costs -- issues with profound pocketbook and personal health implications for every American family, and for the wellbeing of the nation.
Yet citizens will have to “earn” their right to see their highest court in action by standing in line, outside, overnight. To so stringently limit access to such an important public proceeding makes no sense, especially in an age of such abundant and extraordinary communications tools.
In rejecting requests for live audio or video coverage of the proceedings, the Court announced it will release same-day audio recordings and transcripts but will not allow live audio streaming. These gestures toward the public’s interests and stake in this case are welcome, but they fall far short of meeting the transparency requests of many members of Congress.
It is not surprising that there is tremendous public interest in following these historic arguments as they happen. In a December Gallup poll, 72 percent of adults agreed that oral arguments on the Affordable Care Act should be televised. Both Democrats and Republicans overwhelmingly favor televising these public proceedings.
The natural tendency in any organization, including governments, is to control access and information. Even in our democratic society, the public’s right to know has not always been a priority. In its first six years, the U.S. Senate did not even allow the public or the press into its chamber to watch debates and votes. There was not even a Congressional Record to inform citizens about what the Senate was doing.
The House of Representatives finally began televising its proceedings in 1979 under a breakthrough prodded in part by Brian Lamb, the tenacious visionary who helped create C-SPAN and who this month announced his retirement from C-SPAN’s day-to-day operations. The Senate followed in 1986, and I remember well the handwringing that accompanied the change. But opening the legislative branch to cameras, and later, to email and the Internet, has been a great service to the public, and a great convenience for all.
In contrast to the progress made in inviting citizens into Congress and the executive branch through C-SPAN, our third branch of government continues to lag. I have asked questions about allowing cameras and other communication tools into our courts at just about every Supreme Court confirmation hearing for as long as I remember. One unobtrusive camera, or even live audio streaming, could bring millions of Americans into the courtroom for these momentous arguments. Of course care must be taken in how it is done, but I have no doubt that we can find the answers to use technology as our tool – in service to the public’s right to know -- without letting it become our masters.
The Senate Judiciary Committee, which I chair, recently approved a bipartisan bill offered by Senator Durbin and Senator Grassley to permit the televising of Supreme Court proceedings. Inexplicably, it has been blocked since then on the Senate Floor.
Televising Supreme Court proceedings would help inform citizens about the Court’s crucial role in considering the enduring constitutional debates in our society, while also promoting government transparency and confidence in the legitimacy of our independent judiciary.
As the great Supreme Court Justice Brandeis once observed, sunshine disinfects. It also illuminates. This is a truth that applies to all three branches of government. In a time when the impartiality of the Court and the reach of its decisions have been questioned in the wake of divisive five-to-four rulings, the public’s confidence in the nation’s highest court needs some sunshine. Over time, the public’s right to know has been gaining ground as a priority, edging closer to being the default setting. It is time to invite the American people into their own courtrooms.
Sen. Leahy (D-Vt.) is chairman of the Senate Judiciary Committee.