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(by Richard Wolf, USA Today) WASHINGTON – A year-long string of controversial cases the general public couldn’t see at all, or hear until later, has increased pressure on the Supreme Court to consider [allowing proceedings to be televised live]. …
Many of the demands come from Democrats and liberal interest groups concerned about the court’s conservative tilt. Though they are not likely to prompt Chief Justice John Roberts and his colleagues to make immediate changes, they could eventually [cause the justices to allow TV cameras in the courtroom]. …
Same-day audio from court arguments has been released in a few cases, beginning withBush v. Gore in 2000. Same-day written transcripts have been made available to the public since 2006.
Roberts, who became chief justice in 2005, has argued that the judiciary is the most transparent branch of government. “Everything we do that has an impact is done in public,” he said in 2011. “Our decisions are out there.”
When the court held oral arguments during its recent term on [cases including] same-sex marriage, voting rights and affirmative action, only a few hundred people were able to watch. Many were lawyers, journalists, guests of the court and those who could afford to pay others to hold their place in line.
For the historic gay marriage cases, the court broke with its normal policy and released audio transcripts later in the day. That was the first time in a year that members of the public didn’t have to wait until week’s end to hear the justices in action. Before 2010, except in rare cases, the public had to wait until the end of the term [for audio to become available].
When it came time to issue decisions on the term’s major cases, Sen. Dick Durbin, D-Ill., urged that live audio be distributed, to no avail. Days later, he and Sen. Chuck Grassley, R-Iowa, introduced legislation calling once again for cameras in the court.
…Ultimately, it won’t be poll ratings, public pressure or congressional action that moves the nation’s highest court, but the preferences of its nine justices. …
CAMERAS PRESENT CHALLENGES
Over the past quarter-century, the court has moved in fits and starts toward more openness. Two pilot programs have inserted cameras into some lower federal courts. The latest three-year pilot, set to conclude next year in 14 district courts, from Florida to Washington and from Massachusetts to Guam, got off to a slow start and has been beset by the refusal of many lawyers and clients to have their civil cases filmed. …
The appellate level should be even simpler [than district courts], advocates argue. Already, the appellate courts in the 2nd and 9th Circuits – covering 12 states from Vermont to Hawaii, including California and New York – permit cameras. At the Supreme Court, oral arguments are a simple, hour-long give-and-take between lawyers and justices.
That hasn’t stopped the justices from remaining opposed to cameras – even those, such as Sonia Sotomayor and Elena Kagan, who voiced support for the idea originally.
Cameras “present all sorts of challenges,” Roberts said in 2011. He mentioned the potential impact on lawyers and judges – who, he said, “fall into grandstanding with a couple of hundred people in the courtroom.”
Justice Anthony Kennedy said in New York last month, “My colleagues and I are not immune from the instinct to grab a headline, and I don’t want to think that my colleague asked a question for the benefit of the press. I don’t want to introduce that insidious dynamic between myself and my colleagues.”
In an interview with USA TODAY, liberal Justice Ruth Bader Ginsburg said cameras could give Americans the misimpression that everything depends on the oral arguments, rather than the reams of legal briefs, lower court rulings and historic precedents the justices read and research.
“The notion that it’s a contest between two advocates, and the better one is going to win, is totally, totally false,” she said.
The cable network C-SPAN has fought for decades without success to get its cameras into the Supreme Court. At a Senate hearing in 2005, its founder, Brian Lamb, said, “The judiciary has become the invisible branch of our national government as far as television news coverage is concerned, and increasingly, as far as the public is concerned.”
Bruce Collins, the network’s general counsel, says the justices limit the amount of public access they will allow. “The founding fathers put limits on all the rights, including the right of free speech,” he says. “The Constitution is satisfied when you have seats in the courtroom for the general public.”
But those seats are hard to come by. The court fits about 400 people, but many of the seats are reserved for members of the Supreme Court bar, friends and family, journalists and others. For the most popular cases, members of the public must wait in long lines for hours or even days. Most of those who do get in can stay only a few minutes before making room for others.
Even the court’s marble plaza remains off limits to demonstrators, who must stay on the sidewalk. When a district judge ruled in June that the court’s ban on protests there was unconstitutional, the court quickly issued a regulation to replace it.
…..
Reprinted here for educational purposes only. May not be reproduced on other websites without permission from USA Today. Visit the website at USAToday.com. [Note: This article was published at usatoday.com on August 12]
Questions
Note to Students: Read the “Background” below before answering the questions.
1. a) How many justices are currently on the Supreme Court?
b) Name each justice and the president who appointed him/her.
c) Between which months is the court in session?
2. What information does the public have access to on all cases heard during each term of the U.S. Supreme Court?
3. Who is pushing the justices to open the courtroom to television cameras?
4. What is the implied reason for this request?
5. Define transparent and secretive.
6. Those pushing for court proceedings to be televised say it is the only way to have real transparency; they imply that the Court is secretive.
a) Is the Court secretive? Explain your answer.
b) Are court proceedings transparent? Explain your answer.
CHALLENGE QUESTION:
Read the following pros and cons, excerpted from “Cameras in the Courtroom”? (from sfbar.org/forms/sfam/q22012/scw-cameras-in-the-courtroom.pdf – published Summer 2012)
PRO – reasons for allowing cameras:
- by advancing transparency, televising the arguments would help strengthen our democracy. Only an informed citizenry can hold accountable both the Court and the politicians who appoint the justices.
- televising Supreme Court arguments would help educate the public about the workings of our government and the Court itself. Short news clips will not substitute for reading the Court’s opinions, but the television coverage will bring conversations about the Court into more homes and classrooms.
- although Supreme Court proceedings already are open in many ways, they are not equally open to all. Few people can afford to leave work and travel to Washington, D.C., to wait in the public line to view an argument. The prospect of getting a seat becomes even dimmer with the advent of professional line standers, like those from LineStanding.com, who are paid up to $50 an hour to secure spots in the long line, and then are relieved at the last minute by their “customers.”
- The Court’s written opinions are sometimes hard for nonlawyers to understand and do not substitute for observing the arguments. The online audio recordings are less convenient than television and harder to navigate.
CON – reasons for not allowing cameras:
- Cameras would change—and detract from—how Court proceedings are conducted. Some justices have expressed concerns that lawyers and even the justices would engage in “grandstanding” for the camera or otherwise would tailor their behavior to the public eye. Perhaps more troubling, the justices might censor their questions or remarks for fear they may be misunderstood or quoted out of context.
- Cameras would provide little added benefit. The Court’s work already is transparent in the most crucial way: its decisions are described and defended in writing and made part of the public record, with concurring and dissenting views aired simultaneously. Justices have emphasized that this is the principal way in which the Court’s work can and should be judged. The Court proceedings themselves also are open to the public (although seating can be very limited). In recent years, the Court has used technology to make its work more accessible: published decisions are available online upon release; a full transcript of each argument is available on the Court’s website hours after argument; and audio recordings are available online each week. Opponents of cameras question what added benefit the public would receive from being able to see the justices’ faces — other than to make the cases more readily clipped for news sound bytes and quips from Jon Stewart and Stephen Colbert.
- Some justices have raised separation of powers concerns over the prospect of Congress telling a coordinate branch of government how to conduct its proceedings, and have strongly urged Congress not to force the cameras issue.
a) How legitimate are each of these positions on cameras in the Courtroom? Explain your answer for both the pro and con.
b) Can you think of any additional reasons for supporting or opposing televising court proceedings?
Background
On the Supreme Court from BensGuide.gpo.gov:
- Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
- The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
- Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
- Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
- If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.
EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)
- A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
- An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
- Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
- During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.
Resources
Read more about the cases accepted by the Supreme Court for 2013-14 at the official website (soon to be posted there): supremecourtus.gov.
GREAT resource: During the Supreme Court’s summer recess, SCOTUSblog.com publishes a series of posts that explain, in non-legal terms, some of the most important cases that the Court will consider in the new Term that starts October 7, 2013. Go to scotusblog.com/category/plain-english for these posts. Check back as the term progresses.
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