"Extraordinary public interest" in the Patient Protection and Affordable Care Act oral argument is still not a good enough reason for SCOTUS to allow proceedings to be televised

In response to news organizations requests, SCOTUS announced on March 16, 2012 that it will post the audio recordings and unofficial transcripts of the oral argument for the March 26, 27, and 28, 2012 proceedings in the Patient Protection and Affordable Care Act consolidated cases on an expedited basis through the Court's website. "The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m."

The Court's statement did not mention media requests to televise the proceeds. The omission makes it clear that SCOTUS is maintaining its long-standing ban on doing so. C-SPAN annouced that it will broadcast the tapes on C-SPAN 3, C-SPAN Radio and C-SPAN.org “as soon as they are released.” For more details, see Lyle Denniston's Prompt release of health care audiotapes on SCOTUSblog.

The doomed request to televise the oral argument. In a letter dated Nov. 15, 2011, Brian Lamb, the chairman of C-Span, wrote to CJ Roberts requesting that SCOTUS allow cameras in the court for the oral argument the day after the Court decided to hear the consolidated cases: "We believe the public interest is best served by live television coverage of this particular oral argument." On Nov. 18, 2011, The Reporters Committee for Freedom of the Press, a coalition of media organizations that included the likes of Wolf Blitzer (CNN), Andrea Mitchell (NBC News) Bob Schieffer (CBS News) Eric Schmitt (The New York Times), Judy Woodruff (PBS/The NewsHouse) on its Steering Committee supported Lamb's request, stating

In his similar request to the Court, C-SPAN chairman and chief executive officer Brian Lamb writes that audio-only coverage of a 5 ½-hour event in which all the justices and various counsel will participate would not sufficiently serve the public interest in closely monitoring and understanding the proceedings. We agree with him.

On Nov. 28, 2011, Adam Liptak wrote in his New York Times Sidebar column, Supreme Court TV? Nice Idea, but Still Not Likely, that the request to televise the argument in Patient Protection and Affordable Care Act cases was "of course, doomed. Yet it is hard to say why."

The Supreme Courts of Canada and the United Kingdom allow cameras. What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters of surpassing consequence. It probably inspires confidence. It certainly dispels ignorance.

Liptak added

The arguments against cameras are mostly rooted in paternalism or self-interest. Some justices say the public cannot be trusted to understand what goes on at oral arguments and how the arguments figure in the work of the court. Others worry that additional public scrutiny would alter the behavior of lawyers and justices for the worse. Still others say they fear harm to their personal privacy or to the court’s prestige.

In an interview, Mr. Lamb said he had heard one main objection from the justices. “It’s the sound bite,” he said. “They don’t like, in the modern age, that people can sound bite them.”

See also C-SPAN's Cameras in the Court for each Justice's view on the issue of opening the Court to cameras, based on their individual public statements

So SCOTUS is worried about media coverage about what they might say from the bench. You might as well ban reporters from the courtroom. Hell, you might as well ban ordinary citizens from the courtroom and conduct all SCOTUS official courtroom proceedings sub rosa.

In this instance, we are talking about televising a not insignificant proceeding -- the constitutional challenge to President Barack Obama's health care reform law. The media will still extract "sound bites" from the expedited audio and unoffical transcripts in televised, print and web communications. The "ordinary citizen" who might be lucky enough to sit in SCOTUS' courtroom may tweet during or at least afterwards "sound bites." Duh!

With respect to the Patient Protection and Affordable Care Act cases it borders on the incredulous to take the Supreme Court's denial of requests to allow cameras in the courtroom because of its traditional ban seriously. This branch of government simply does not like the other branches of the federal government "suggesting" what SCOTUS should do. See, for example, Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History and Short but Sweet? CJ Roberts informs Senate Judiciary Committee Chairman that SCOTUS does not intend to adopt the Code of Conduct for US Judges.

There is another important issue here. For the constitutional-challenged, by which I mean the subscribers to the originalist school of thought, my hunch is James Madison is probably turning over in his grave because of the ban on cameras in all federal courts. I'm thinking James Madison would want open access by way of all publication mediums including TV if it existed in the 1780s. TV has been around for 60-plus years now so this isn't some bleeding edge communications medium. Not only can televised proceeding inspire confidence and dispel ignorance, the audio-visual medium has become an archival medium, one that can educate the public at large by preserving an official audio-visual record for all in the 21st century.

More narrowly focused, an archive of televised official congressional proceedings will become part of legislative history research. An archive of official televised federal court proceedsing also should become part of the official court record. While our major legal vendors have responded to the "Google Generation" in the next-gen current-gen search systems, there is no doubt in my mind that they will eventually also respond to the "YouTube" generation by enhancing their databased and eBook resouces with both official audio and videos in addition to text transcripts and add videos that provide commentary and analysis as part of "secondary source literature". Do note, I have failed to find one of our major legal information vendors who joined the call to televise either this specific SCOTUS proceeding or to call for the removal of the ban on federal courts to do so. Perhaps my research in this regard is faulty; perhaps some of our major legal vendors aren't prepared for the "YouTube" generation yet. At least with respond to "secondary source" video content, Bloomberg Law is not one of those vendors.

So while major media outlets' call on SCOTUS to televise this one proceeding has been rejected, that rejection can be viewed as a "plus" in the larger context of the Open Government movement. Eventually SCOTUS and our entire federal court justice system cannot ignore modern communications.

"Being There", in person or 'virtually". Thanks to retired Supreme Court Librarian, Judith Gaskell, I once attended a SCOTUS oral argument during a trip to Washington DC; the trip was, well to put it frankly, one of those attempts academic law librarians something do in an effort to reinforce an alumni-donor interest in continuing to support his law school. Because I was not well-versed issues involved until afterwards, let's close this post with a comment by someone who was far, far, better qualified than I was when she attended a SCOTUS session in person.

“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer,” she said at the Aspen Institute in August. “I thought if everybody could see this, it would make people feel so good about this branch of government and how it’s operating. And I thought it’s such a shame actually that only 200 people a day can get to see it.”

Quoting from Liptak's Supreme Court TV? Nice Idea, but Still Not Likely.

Some resources for the Patient Protection and Affordable Care Act issues presented to SCOTUS:

• SCOTUS Docket
• On-going expert commentary and analysis on SCOTUSblog.

{JH}