Supreme Court Shuns Us Common Folk

by Nat Hentoff

This article appeared on Cato.org on December 20, 2011. 

I have often criticized the Supreme Court for continually refusing to allow TV cameras in its courtroom. That way, We The People can see and hear — during oral arguments before the lofty nine with lifetime seats — how they reach judgments that often affect our lives for years to come. Now that our highest court has decided to hear arguments on Obamacare — which can indeed impact our health care and, for some of us, how long we are allowed to make medical decisions — many Americans are anxious to get a sense of how the justices will arrive at their vote before the end of this term.

As Brian Lamb, chairman of C-SPAN, always eager to cover these vital proceedings, says: "If you can't do this in public and you're doing the public's business, then something is wrong with this picture" ("Supreme Court TV? Nice Idea, but Still Not Likely," Adam Liptak, The New York Times, Nov. 28).
I have been in the court's small press gallery in its very limited-seating courtroom. I have witnessed how these individuals in judicial robes will ultimately decide cases by seeing and hearing how they often pointedly disagree with one another as they ask questions of the lawyers before them.
And it is enlightening to get a sense of their personalities, their characters. How open are their minds to rational dissents from their long-held inner conclusions during these fateful high-court procedures?
Over the years, some of the justices have claimed that the public just isn't equipped to understand the complexities of these cases. Justice Antonin Scalia, a very active and emotional participant in the oral arguments, has lectured us commonplace citizens:
"Law is a specialized field, fully comprehensible only to the expert" (Cameras in the Courtroom: Television and the Pursuit of Justice, by Marjorie Cohn and David Dow, McFarland, 2011).
How many of us fellow citizens do you know well enough, Your Excellency, to arrogantly decide that we're too dumb to understand the basic rules of law in a self-governing constitutional republic?
You, Mr. Justice, are indeed an expert on the Constitution. So please tell us where in our founding document — and in James Madison's detailed notes on the extensive debates in the 1787 Constitutional Convention — you and your colleagues find summary justification for excluding us from these crucial deliberations in our court?
Years ago, during a televised debate on the PBS series "The Constitution: That Delicate Balance," moderated by Fred Friendly, who was Edward R. Murrow's former producer and close colleague, I was on a panel that included — I am not jiving you — Justice Scalia.
Should I have kept my mouth shut in questioning this panelist so far above my rank?
In their valuable book on "Cameras in the Courtroom" — which I hope the publisher will send to teachers and department heads for use in classrooms — Cohn and Dow make this rather scalding point that might embarrass some of the justices who bar us from their oral arguments:
"Every ... justice is appointed to the bench for life, immunized from public pressures. They don't need television exposure to keep their jobs. They can enjoy power with near-anonymity. ...
"Why take chances with an impartial electronic witness that can beam your every slip-up, every excess, to thousands or millions of taxpaying spectators, all in the name of giving them greater access to their own court system?"
The late Justice William Brennan told me in his chambers that he disagreed with the majority of his then colleagues and welcomed the TV cameras in the courtroom. The reason, he noted, was that many Americans knew very little of how the court works, or how deeply widespread some of its rulings can be.
At the time, relatively few newspapers or radio and television stations covered the court with engaging depth and clarity. When a case first surfaced that appeared to have major importance, Justice Brennan wanted the press to report on it from the start so that Americans would have a full understanding of our legal procedures from the beginning.
That hasn't happened, of course. And with print news sources increasingly reduced for cost reasons and so much cable news devoted to inflammable opinion rather than legal analysis, even vital high-court cases are not reported with enough lucidity. So Americans are getting only a brief, impressionistic understanding of the consequences of the justices' decision.
Contrary to Justice Scalia, that's not the fault of those of us who do want to be knowledgeable members of this self-governing nation.
Thomas Jefferson often warned future Americans that the ultimate guardians of our individual liberties would be us, the people. But we'd have to know what was going on — especially at the Supreme Court:
"There is no danger I apprehend so much," Jefferson said, "as the consolidation of our government by the noiseless ... instrumentality of the Supreme Court" (my column, "The Invisible Supreme Court," Jewish World Review, Dec. 2, 2003).
There was a poll taken years ago that asked Americans if they knew who the justices were. Only 5 percent at the time even knew of Justice Brennan. With a grim chuckle Brennan said to me, "Harry Blackmun got only 1 percent."
Right now, the historic Obama case is so important that the high court is devoting three days to oral arguments ("Supreme Court to Hear Health Care Case in Late March," Adam Liptak, The New York Times, Dec. 19).
But we citizens are forbidden to attend.