It's Time for the United States Supreme Court to Catch Up With the Times

Chief Justice Maureen O'Connor
Guest Editorial Column
March 29, 2013

As the U.S. Supreme Court heard historic oral arguments on same-sex marriage last week, a debate outside the courtroom centered on a timeless question facing the top court in the land: Should the justices respond to public opinion or lag behind as society moves forward?

I believe that what we witnessed last week leads to the inescapable conclusion that the U.S. Supreme Court should catch up with where the nation has come. It is time for the court to allow cameras in its courtroom.

I write not as chief justice of the Supreme Court of Ohio but as a citizen. I have a unique perspective by virtue of my experience as a justice on a televised Supreme Court.

Regardless of one’s views on same-sex marriage, this week offered a spectacle of vivid images demonstrating that the justices are lost in the 19th Century when it comes to being open and transparent to the public they serve.  Rather than seeing lawyers in action before the justices, we saw citizens huddled in the cold for days, waiting for a ticket to have the privilege to watch our democratic system of justice in action. There are over 300 million Americans, but only 500 seats in the Supreme Court gallery. For most of us, after two days of arguments, we have only almost comical courtroom sketches of the proceedings rather than video or even still photographs. We are left with talking heads speculating on what they did not themselves observe in the impenetrable sanctum accessible only to an elite and chosen few. These images serve no purpose but to further erode the public image of the court.

Late last year, public confidence in the Supreme Court reached its lowest point in 25 years. In one poll by the New York Times and CBS News, only 44 percent of Americans said they approved of the job of the court. About 75 percent said they believe the Court’s decisions are influenced by politics. 

In this Information Age -- when you can post a video of your child’s piano recital and his grandparents “like” it on Facebook before he has finished playing – the public’s expectations about how they acquire knowledge and understand the world have undergone a radical metamorphosis. The impact of video and audio has no equal and, absent really being there, there is no substitute.

The tired, old arguments against allowing cameras in the courtroom are approaching flat earth status. They essentially fall into one of four categories:

  1. Justices, counsel or observers will “grandstand” for the cameras. Like many of our counterparts across the nation, the Ohio Supreme Court has broadcast its oral arguments live, in our case for almost 10 years. Initial speculation of grandstanding has been proven unfounded. Our archived video, coupled with online access to briefs and opinions represents a superior learning tool that has been utilized thousands upon thousands of times.
  2. Allowing cameras detracts from the majesty and decorum of the proceedings. To the contrary, cartoonish courtroom sketches detract from the proceedings, and as already noted, the public today distrusts what it cannot observe. Technology has advanced to the point where the cameras are wall mounted and unobtrusive. The presence of a camera operator is unnecessary, and there is no distraction.
  3. Things will be taken out of context, and the general public won’t understand the nuance and complexity of the legal argumentation. This one is the worst because it is elitist and insulting to the public. The inevitable result of this attitude is that the public is forced to process its information about the court through the filter of the media because there is no other direct option available. This is a democracy. We settled the question of whether we trust the people to govern themselves 230 years ago.
  4. The justices’ reluctance to become public figures.  Justices are not ‘ivory towered’ nor should they be. Justices write and promote their books; they lecture and are often participants in teaching events and interviews.  The American public is as entitled to know who sits on the Supreme Court as they are entitled to know their local council member or mayor.  And they are entitled to see them in action.

The court is to be commended for allowing same day audio of certain big arguments, and select federal lower courts have been experimenting with recorded video of certain proceedings. However, the day will come – hopefully very soon – when all U.S. Supreme Court cases are broadcast live in their entirety.

When it does, people will look back on this era the way we do today on the days when ladies were not allowed on the floor of the U.S. Congress.

The times, they are a changing. It’s time for the Supreme Court to catch up.