Believe it or not, some public figures in Washington actually don't want to appear on television. These rare creatures are the justices of the US Supreme Court, who insist on wielding their power amid an Olympian secrecy that befits such gods of the legal world. But now the vulgar masses are clamouring as never before to be allowed entry to at least a wing of the temple.
The fuss started last month, when the court announced that it would take up legal challenges to President Obama's healthcare reform, the greatest and most controversial domestic achievement of his first term. It has scheduled a virtually unprecedented five and a half hours of oral arguments, at which attorneys for both sides will plead their case in person before the nine justices. The hearing has been set for next March, so that a ruling, which will probably make or break the entire law, will come well before the 2012 election. It is, obviously, one of the most important Supreme Court cases in decades and, not surprisingly, the media and some members of Congress from both parties want the arguments to be carried live on television.
You'd have thought it was a sure thing. The issue, after all, affects every American, and televised court proceedings are nothing new. Hearings of Britain's Supreme Court, which started up in 2009, are televised. So are those of Canada's Supreme Court. And, even more to the point, so are many criminal trials in most US states. Yes, on occasion the majesty of the law has been tarnished, as anyone who followed the nine-month OJ Simpson carnival can attest. But the system has survived, and the fact is that most trials – even celebrity trials – are rather ponderous affairs.
And if the country's highest court goes on TV, even that novelty will quickly wear off. For one thing, the cameras would cover only a small part of the court's activity. The really important work, such as the selection of the 100 cases that will be considered each year out of the 10,000 or so submitted, and the discussions that produce final rulings, will remain unseen. Nor are oral arguments exactly rip-roaring entertainment. They are held three days a week, every other week, during the court term that runs from early October until the following June or July. Normally each case is allotted one hour, during which the justices question attorneys for each side. The points are mostly technical, and the atmosphere rather like an Oxbridge tutorial, punctuated by the odd donnish joke, or more rarely reprimand, from the bench. Woe betide the lawyer who starts to showboat.
One argument for televising proceedings is that so vital a part of the US constitution should be open to public scrutiny, and not restricted merely to the lucky few who secure one of the 200-odd seats available. Another is that the quality of oral arguments is top notch. These are not the bear-pit shouting matches that pass as discussion on cable TV, but highly informed debates between some of the sharpest minds in the land, on a highly important matter. As a final safeguard, oral arguments would be carried on C-Span, the dry-as-dust and pundit-free channel that covers Congress. Clearly, the risk of demeaning, OJ-style histrionics is minimal.
So why does the court continue to resist the idea? One fear is that it would be unduly "politicised" – that, say, Republican-leaning Fox News would use selective extracts to go after justices perceived as liberal. But the reality, confirmed by the shamelessly partisan Bush vs Gore ruling that settled the 2000 presidential election, is that it has long been politicised, between a liberal minority and a broadly conservative majority. Another is that the court would lose its mystique, much as Walter Bagehot in 19th-century Britain feared the monarchy would be doomed if the public were permitted to learn too much about it. Bagehot, however, was wrong. And outside the court, the justices are no shrinking violets. They make speeches, write books and are prized catches on the Washington cocktail circuit.
The real reason, one suspects, is the great men's dread of the common soundbite. C-Span might play by the rules, but what's to stop a clip taking a justice's learned musings out of context or, perish the thought, even showing him dozing off, doing the rounds on YouTube? The answer, of course, is nothing. But like the British monarchy – which has suffered far worse indignities – the Supreme Court would survive and surely thrive.
Indeed, Iowa's high court has been putting its oral arguments live online since 2006 without the slightest problem, that state's chief justice told the Senate last week. Elena Kagan, the newest minted Supreme Court Justice, said at her confirmation hearings in 2010 that it would be "terrific" to get cameras in, "a great thing for the institution, and, more important, for the American people".
But the odds are that the discretion of the past will again prevail. Ms Kagan is in a minority among her peers, and in the unlikely event that a bill were passed by Congress, the court itself might strike the measure down. After all, the Supreme Court's most basic task is to make sure the US constitution is observed. And as one justice has publicly argued, in a system founded on the separation of powers between the legislative branch (Congress) and the judicial branch (the Supreme Court), the former has no constitutional right to tell the latter how to run its business.
The best to expect is a gesture from the court itself: maybe a live audio feed for the healthcare arguments; maybe, just this once, a closed circuit TV feed into overflow rooms, as happens in an ordinary trial where national news interest far outstrips the number of seats in the courtroom press gallery. But the Supreme Court regularly on national TV? Never.
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