Does Constitution Allow Supremes to Hide from Us?

by Nat Hentoff

This article appeared on Cato.org on December 28, 2011. 

The first reporter I turn to for accurate news and analysis on a Supreme Court decision is Adam Liptak of the New York Times. In a recent article ("Supreme Court TV? Nice idea, but still not likely," Nov. 28), he told us: "The Supreme Courts of Canada and the United Kingdom allow cameras" during their oral arguments.

But in the self-governing constitutional republic of the United States, Justice David Souter, when he was on our highest court, notoriously pledged: "The day you see a camera come into our courtroom, it's going to roll over my dead body."
If I were teaching a high-school civics class, I don't know how I would explain to the students that they, like the rest of us ordinary citizens, are banned by the court from seeing and hearing how these top interpreters of our rule of law decide cases, thereby preventing us from learning who they are and how they think.


But as a longtime reporter on the court, I would tell the students what I knew about each justice, including my respect for David Souter's exceptionally fair, lucid judgments while he was there — and my shock at his harsh rebuke concerning cameras in the courtroom.
Justice Ruth Bader Ginsburg, of the present court, whom I also respect for her knowledgeable independence, disappointed me, however, with her explanation of Souter's order to keep cameras out: "David ... can go to the supermarket and do his shopping, and no one will notice."
Huh? In my work, I've looked hard through the Constitution many times, but cannot find any grant of anonymity to Supreme Court justices.
While a decisive majority of these self-protecting justices on the current court still oppose letting TV cameras in, they're not, I assume, going to sacrifice their lives if those dreaded cameras were to enter their historic courtroom.
A notable exception to the justices' prevailing distrust of the citizenry's presence in their courtroom is the recently confirmed Justice Elena Kagan, former dean of Harvard Law School.
After President Barack Obama nominated her to the court, I expressed considerable reservations in my previous columns about her record as solicitor general. I was very pleased, however, to read Adam Liptak's report, where Kagan, before joining the court, talked about being able to watch oral arguments, thereby explaining why now she would welcome the TV cameras.
In what she says, I do question her exalted opinion of the qualities of some of her current colleagues:
"Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer ... 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 (in the visitors' small seating section) can get to see it" (The New York Times, Nov. 28).
But what about the many Americans who would like to see for themselves how smart and prepared each of the justices are on live, unedited television? Wouldn't they like to know if the justices are more concerned with making a decision that confirms their own strong prejudgments on a case than making a decision that is influenced by the arguments of the lawyers on each side?
So what do We the People actually want? As I reported last year ("We citizens are still excluded from the Supreme Court," Hanford Sentinel, March 23, 2010), Tony Mauro, a continually valuable reporter on the court, wrote in the March 9, 2010, New York Law Journal that a poll had revealed that "more than 60 percent of voters think that televising U.S. Supreme Court proceedings would be 'good for democracy.'"
He added: "Only 26 percent said televising oral arguments would undermine the court's 'dignity or authority.'"
At New Jersey's Fairleigh Dickinson University, which conducted the poll, Bruce Peabody, chairman of its department of social sciences and history, said:
"It is striking that majorities of Republicans, as well as Democrats, young and older voters, and political independents all believe that televising the Supreme Court would support self-government" (Hansford Sentinel, March 23, 2010).
Hear what James Madison, a father of the Constitution, had to say about the crucial need for us to be fully informed about our government institutions: "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both ...
"And a people who mean to be their own Governors must arm themselves with the power which knowledge gives" ("Cameras in the courtroom: Television and the pursuit of justice," Marjorie Cohn and David Dow, McFarland, 2011).
I ask the members of the Supreme Court — as they keep us from being present during the three days of oral arguments on the fiercely controversial Obamacare — how they justify this exclusion of citizens in view of James Madison's definition of a truly self-governing constitutional republic.
From 2012 on, as new justices are nominated to the Supreme Court, will they be asked if they'll open the court to us, even at the risk of losing anonymity and being recognized when they go shopping?
While our Founding Fathers had some disagreements, many were concerned whether We the People would continue to insist that our government be responsible to us. Will the new generation be better-informed citizens than we have allowed ourselves to be under President George W. Bush, Vice President Dick Cheney and President Obama?