[DOCID: f:sr448.110]
From the Senate Reports Online via GPO Access
[wais.access.gpo.gov]
Calendar No. 907
110th Congress Report
SENATE
2d Session 110-448
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A BILL TO PERMIT THE TELEVISING OF SUPREME COURT PROCEEDINGS
_______
September 8, 2008.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany S. 344]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 344), to permit the televising of Supreme Court
proceedings, having considered the same, reports favorably
thereon, without amendment, and recommends that the bill do
pass.
CONTENTS
Page
I. Background and Purpose of the Bill To Permit the Televising of
Supreme Court Proceedings........................................1
II. History of the Bill and Committee Consideration..................9
III. Section-by-Section Summary of the Bill..........................10
IV. Congressional Budget Office Cost Estimate.......................11
V. Regulatory Impact Evaluation....................................11
VI. Conclusion......................................................11
VII. Changes to Existing Law Made by the Bill, as Reported...........12
I. Background and Purpose of the Bill To Permit the Televising of
Supreme Court Proceedings
The Supreme Court of the United States is the highest Court
in the Nation. Thousands of Americans ascend its grand marble
steps each year to watch oral arguments before the Court and to
see the Justices hand down decisions in cases of great import
to our democracy. Several previous Chief Justices and Associate
Justices of the Supreme Court have opined on the importance of
transparency in our judicial system because it promotes
accountability. Former Chief Justice Taft noted:
Nothing tends more to render judges careful in their
decision and anxiously solicitous to do exact justice
than the consciousness that every act of theirs is to
be subject to the intelligent scrutiny of their fellow
men, and to their candid criticism * * *. In the case
of judges having a life tenure, indeed, their very
independence makes the right freely to comment on their
decisions of greater importance, because it is the only
practical and available instrument in the hands of a
free people to keep judges alive to the reasonable
demands of those they serve.\1\
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\1\William H. Taft, Criticisms of the Federal Judiciary, 29 AM. Law
Rev. 642-643 (1895), quoted in Alpheus Thomas Mason, William Howard
Taft: Chief Justice 92 (1965).
Chief Justice Taft was in good company. Eighty years later
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Justice Brennan wrote:
[F]ree and robust reporting, criticism, and debate
can contribute to public understanding of the rule of
law and to comprehension of the functioning of the
entire criminal justice system, as well as improve the
quality of that system by subjecting it to the
cleansing effects of exposure and accountability.\2\
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\2\Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 587
(1976)(Brennan, J., concurring).
Every year, the Supreme Court hears oral arguments in fewer
than one hundred cases. Some cases garner significant public
interest because they involve individual rights and freedoms or
substantial business interests. The Court's public galleries
permit a limited number of people to watch oral arguments on a
two-tiered basis: a small number of members of the general
public can obtain seats for an entire oral argument, while
other members of the general public view three minutes of
argument until the next group from the three-minute line is
ushered into the courtroom.\3\
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\3\See Visitor's Guide to Oral Argument at the Supreme Court of the
United States, http://www.supremecourtus.gov/visiting/
visitorsguidetooralargument.pdf at 2 (last visited Feb. 7, 2008).
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According to one source:
Several million people each year visit Washington,
D.C., and many thousands tour the White House and the
Capitol. But few have the chance to sit in the Supreme
Court chamber and witness an entire oral argument. Most
tourists are given just three minutes before they are
shuttled out and a new group shuttled in. In cases that
attract headlines, seats for the public are scarce and
waiting lines are long. And the Court sits in open
session less than two hundred hours each year.
Television cameras and radio microphones are still
banned from the chamber, and only a few hundred people-
at most-can actually witness oral arguments. Protected
by a marble wall from public access, the Supreme Court
has long been the least understood of the three
branches of our Federal Government.1A\4\
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\4\Stephanie Guitton & Peter H. Irons, May It Please the Court: 23
Live Recordings of Landmark Cases as Argued Before the Supreme Court,
Including the Actual Voices of the Attorneys and Judges, vii
(1993)[hereinafter Guitton & Irons].
Though the Supreme Court has a press gallery, it has never
in its history permitted live television or radio coverage of
its open proceedings. Print media who attend can take notes
during oral arguments as Seth Berlin testified to the Committee
on November 9, 2005: ``There can be no legal basis for
distinguishing, as a matter of constitutional right, between
the recording devices such as cameras and those such as pencils
and paper.''\5\
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\5\Cameras in the Courtroom: Hearing Before the S. Comm. on the
Judiciary, 109th Cong., S. Hrg. 109-331, at 57, N.37 (2005)
[hereinafter Cameras in the Courtroom] (written testimony of Seth
Berlin) (citing Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 591-92 (1983) (striking down state tax statute
singling out small group within the press because it ``presents such a
potential for abuse that no interest suggested by [the State] can
justify the scheme''); Arkansas Writers' Project, Inc. v. Ragland, 481
U.S. 221 (1987) (same); Cosmos Broad. Corp. v. Brown, 471 N.E.2d 874,
883 (Ohio Ct. App. 1984)(``[1]f the print media, with its pens, pencils
and note pads, have a right to access to a criminal trial, then the
electronic media, with its cameras, must be given equal access
too.'')).
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The Supreme Court did not begin recording oral arguments on
audiotape until 1955, one year after the Court's landmark
decision in Brown v. Board of Education that held
unconstitutional State-sanctioned segregation in public
schools.\6\ In testimony before the Judiciary Committee,
Professor Peter Irons explained that the tapes were kept at the
National Archives and were accessible to the public until 1986,
when Chief Justice Warren Burger created a rule prohibiting
duplication of the tapes and limiting their use to research and
teaching.\7\ Professor Irons obtained copies of the tapes from
the National Archives for use in a project to provide edited
and narrated tapes to schools and the public. In 1993, just
before the tapes were published, Professor Irons was informed
that ``the Court was contemplating `legal remedies'''\8\
against him for releasing the tapes but, ultimately, Professor
Irons was able to publish the tapes along with rough
transcripts he generated with the help of his coauthor
Stephanie Guitton.\9\
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\6\347 U.S. 483 (1954).
\7\Cameras in the Courtroom, supra note 5, at 92.
\8\Id. at 93.
\9\Guitton & Irons, supra note 4.
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Between 1955 and 1993, there were over 5,000 recorded
arguments before the Supreme Court,\10\ an average of about 131
arguments annually. The current practice is to release oral
argument transcripts the day of the argument.\11\ Audiotapes of
oral arguments are released after the conclusion of the Court's
term.\12\ Recently, the Chief Justice has granted media
requests for the prompt release of audiotapes in a handful of
high-profile cases. This practice, however, has been
inconsistent and discretionary.\13\
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\10\See id. at vii.
\11\See Transcripts and Records of Oral Arguments (Oct. 2006),
http://www.supremecourtus.gov/oral_arguments/
availabilityoforalargumenttranscripts.pdf (last visited Feb. 7,
2008)(``The Court's contracted reporting service, Alderson Reporting
Company, with the aid of a court reporter in the Courtroom and high-
speed technology, will transcribe the oral arguments more quickly,
therefore, providing the transcripts to the Court for same day posting
on our Web site.'' (footnote omitted)).
\12\See id (``At the beginning of the next Term, the recordings are
transmitted from the Marshal to the Motion Picture, Sound, and Video
Branch of the National Archives. The Archives' collection contains
audio recordings of Supreme Court oral arguments from 1955 through the
immediately preceding October Term. Members of the public can listen to
or make their own copies of oral argument recordings using their own
tape recorders, blank tapes, and patch cords at the Motion Picture,
Sound, and Video Branch. Copies of recordings can also be purchased
from the Archives.'').
\13\See e.g., Editorial, The Supreme Court Club, N.Y. Times, Jan.
16, 2008, at A22 (complaining that ``Chief Justice John Roberts even
declined a news media request that he release an audio recording of [of
arguments in an Indiana voter identification case] as soon as the
argument ended, much as the Court has done in a small number of high-
interest cases since Bush v. Gore in 2000.'').
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Despite the Supreme Court's continued reluctance to admit
cameras or broadcast radio or television coverage of its public
proceedings, many in Congress believe it is time for the
Supreme Court to join the other branches of Government in
allowing television coverage of its public proceedings. Since
2003, over 30 newspaper editorial boards and letters to the
editor across the United States have endorsed the idea of
camera coverage of Supreme Court arguments.\14\ Legal
scholarship published in journals and law reviews also support
camera coverage of Supreme Court proceedings.\15\
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\14\See, e.g., Bruce Peabody, Televise Supreme Court, Daily Record,
Jan. 18, 2008, available at http://www.dailyrecord.com/apps/pbcs.dll/
article?AID=/20080118/OPINION03/801180309/1096/OPINION (last visited
Jan. 22, 2008); Editorial, Lights, Camera . . . Court's In Session,
Republican, Dec. 15, 2007, at A06; Peter G. Verniero, Supreme Court TV,
Wall St. J., Oct. 31, 2007, at A20; Lisa Scottoline, Chick Wit, The
Supremes: Just What are Top Justices Really Afraid of?, Philadelphia
Inquirer, Apr. 15, 2007, available at http://scottoline.com/Site/
Column/chickwit5.html, (last visited Jan. 22, 2008); Mark Trachtenberg,
Webcasts Open a Window to Texas Supreme Court, Houston Chron., Mar. 29,
2007; Editorial, Televise Court, Erie Times News, Feb. 28, 2007;
Editorial, Cameras, Please: Congress Should Push Federal Courts Into
21st Century, Rocky Mountain News, Feb. 26, 2007, at 34; Editorial,
Restoring the People's Court, San Gabriel Valley Tribune, Feb. 24,
2007; Tom Teepen, Time May Be Ripe for TV Coverage of Supreme Court,
Ventura County Star, Feb. 20, 2007; Editorial, Supreme Court is Sturdy
Enough to Absorb Modernizing Eye of Television Camera, Morning Call,
Feb. 19, 2007, at A8; Editorial, Time to Open Up High Court to TV,
Boston Herald, Feb. 18, 2007, at 22; Editorial, Televising Supreme
Court Proceedings, Lancaster New Era, Feb. 16, 2007, at 8; Editorial,
Candid Camera: Specter is Right to Want to Televise the High Court,
Pittsburgh Post-Gazette, Feb. 16, 2007; Editorial, Justices on Camera:
Sen. Specter Makes a Strong Case for Allowing Cameras Into Supreme
Court, Albany Times Union, Feb. 15, 2007, at A10; Editorial, Actions in
High Court Ready For Prime Time, Republican, Feb. 14, 2007, at A10;
Editorial, Now Starring: The Supreme Court, Las Vegas Rev. J., Feb. 13,
2007, at 8B; David Draschler, Do it on a Trial Basis, Nat'l L. J., Vol.
29, No. 9, at 27 (Oct. 30, 2006); Henry Schleiff, Shine TV Lights on
the Supreme Court, Miami Herald, May, 1, 2006, at A20; Arlen Specter,
Hidden Justice(s), Wash. Post, Apr. 25, 2006, at A23; Editorial,
American Justices?, L.A. Times, Apr. 30, 2006, at 4; Henry Schleiff,
Letter, Unveil the Justices: Cameras at the Supreme Court Decades
Overdue, Dayton News J., Apr. 22, 2006, at 04A; Editorial, Justice
Kennedy Goes Too Far: Misreading the Constitution in a Self-Serving
Cause, Wash. Post, Apr. 18 2006; Editorial, Unveil the Justices:
Cameras at the Supreme Court Decades Overdue, Daytona News J., Apr. 13,
2006, at 04A; Mickey H. Osterreicher, Let Cameras in the Supreme Court,
Oklahoman, Aug. 12, 2006, at 13A; Bruce Williamson, High Court is Out
of Touch With TV Coverage, Times Union, Apr. 13, 2006, at A12;
Editorial, Cameras in Court, Las Vegas Rev. J., Apr. 3, 2006, at 6B;
Marsha Mercer, Camera Shy Justices?, Fort Wayne J. Gazette, Jan. 1,
2006, at 7A; Henry Schleiff, Letter, `Sunshine' in Courts, Chi. Trib.,
Dec. 10, 2005, at 25; Editorial, Cameras in the Supreme Court Shine
Light on Justice System, Pensacola News J., Oct. 5, 2005, at 8A;
Editorial, TV Brings ``Sunshine'' Into Our Courts: Court TV Wanted St.
Louisans to see Leonard Little's Trial as it Unfolds, St. Louis Post-
Dispatch, Mar. 31, 2005, at D11; Howard Rosenburg, Let TV Go to the
Circus, Broadcasting & Cable, Mar. 7, 2005, at 50; Nat Hentoff, The
Invisible Supreme Court, Wash. Times, Dec. 1, 2003, at A21; but see
Fred Grimm, Court Decorum Falls Victim to TV Cameras, Miami Herald,
Feb. 25, 2007, at State and Regional News; Linda P. Cambell, Lights,
Camera . . . Distraction?, Augusta Chron., Feb. 24, 2007, at A05; and
Ali F. Sevin, Letter, Supreme Court is Too Serious For TV, Wash. Times,
Apr. 30, 2007, at B02.
\15\See, e.g., Marjorie Cohn, Let the Sun Shine on the Supreme
Court, 36 Hastings Const. L. Q. 161, 168 (2008) (``When the Court
argues about how the next President is selected, whether a woman can
choose to have an abortion, whether a detainee may be held in custody
for the rest of his life, or whether the government will take the
threat of global warming seriously, the public has a right to be there.
There is no cogent reason to deny the public a window into the high
court.''); Bruce G. Peabody, ``Supreme Court TV: Televising the Least
Accountable Branch?,'' 33 J. Legis. 144, 147-148 (2007) (``This article
concludes that there are compelling reasons for believing that S. 344
is indeed constitutional, and consequently, it briefly considers the
political prospects of the bill and some of the impact the enacted
measure could have on how we think about judicial reform.''); Audrey
Maness, Does the First Amendment's ``Right of Access'' Require Court
Proceedings to be Televised? A Constitutional and Practical Discussion,
34 Pepp. L. Rev. 123, 183 (2006) (``[T]here are far fewer critiques of
[televising] appellate proceedings, and the current Senate bill appears
to have the most viable approach for this segment of court
proceedings.'').
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On November 9, 2007, Senator Specter and Senator Leahy
wrote to Chief Justice Roberts requesting that he permit
broadcast radio and television recording of all proceedings in
which the Court announces its opinions from the bench. Chief
Justice Roberts replied on December 3, 2007, agreeing to give
serious thought to the request.
Chief Justice Roberts repeatedly stated during his
confirmation hearing that he has no set view on the issue and
would defer to his colleagues on the Court:
Senator, it's not something that I have a settled
view on and I do think it's something that I would
benefit from the views of my colleagues, and I know
that some of them have particular views and some may
not. I noticed the last time there was a formal
response by the Court to a request to televise a
particular argument, the Chief Justice referred the
matter to the whole Court and then reported back on it.
I'm also aware that there are--I'm not sure if the
right word is experimental or trial efforts going on in
some of the courts of appeals, the Federal courts of
appeals, to televise arguments there, and I know I've
watched them so I appreciate that opportunity. And I
don't know yet if there's been an evaluation of how
that experiment proceeded, whether the judges thought
it went fine, the lawyers or whatever. I just don't
know.
At the Supreme Court level, I do know they've
experimented recently in a few cases with releasing the
audio tapes immediately after the conclusion of the
argument. Again, I've listened to those on occasion,
not every case, but selected cases of particular
interest. I know that on our court, my court, I'm
sorry, on the Court of Appeals for the D.C. Circuit, we
broadcast, at least within the courthouse,
simultaneously, the oral arguments, so I know the
technology is there to do that and I certainly
understand the interest and I understand how--I know it
was very well received to have the audio tapes
immediately available in some of those cases.\16\
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\16\Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to be Chief Justice of the Supreme Court of the United States: Hearing
Before the S. Comm. on the Judiciary, 109th Cong., 239-240 (2005)
(statement of John G. Roberts, Jr.).
Justice Stevens has indicated that he is willing to allow
cameras into the Supreme Court, stating: ``In my view, it's
worth a try.''\17\
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\17\Henry Weinstein, Televised High Court Hearings Backed; Public
Understanding Would Be Enhanced, Stevens Believes, L.A. Times I.3, Jul.
14, 1989.
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Justice Scalia is concerned about how cameras in the
Supreme Court could misinform the public:
If I thought that cameras in the Supreme Court would
really educate the people, I would be all for it. But I
think it would miseducate and misinform. Most of the
time the Court is dealing with bankruptcy code, the
internal revenue code, [the labor law] ERISA--stuff
only a lawyer would love. Nobody's going to be watching
that gavel-to-gavel except a few C-SPAN junkies. For
every one of them, there will be 100,000 people who
will see maybe 15-second take-out on the network news,
which I guarantee you will be uncharacteristic of what
the Supreme Court does.\18\
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\18\Supreme Court Justice Scalia Gives Civics Lesson, Georgetown
University Blue and Gray, Oct. 21, 2006, http://explore.
georgetown.edu/news/ ?ID=19322, (last visited Feb. 7, 2008).
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[I]f you send it out on C-SPAN, what will happen is
for every one person who sees it on C-SPAN gavel-to-
gavel so they can really understand what the court is
about, what the whole process is, 10,000 will see 15-
second take-outs on the network news, which, I
guarantee you, will be uncharacteristic of what the
court does. So I have come to the conclusion that it
will misinform the public rather than inform the public
to have our proceedings televised.\19\
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\19\Charles Lane, From Justices, Static on Televising Proceedings,
Wash Post (May 2, 2005).
During his confirmation hearing, Justice Kennedy stated
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that he was concerned that the press could cause a distraction:
My initial reaction is that I think it might make me
and my colleagues behave differently than they would
otherwise * * * Perhaps they would be accustomed to it
after awhile. The press is a part of our environment.
We cannot really excise it from the environment * * *.
But in the courtroom, I think that the tradition has
been that we not have that outside distraction, and I
am inclined to say that I would not want them in
appellate court chambers.\20\
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\20\Confirmation Hearing on the Nomination of Anthony M. Kennedy to
be an Associate Justice of the Supreme Court of the United States:
Hearings Before the S. Comm. on the Judiciary, 100th Cong., 218-19
(1987) (statement of Anthony M. Kennedy).
Justice Kennedy recently cautioned that cameras would work
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against the Supreme Court's dynamic:
But I don't think it's in the best interest of our
institution * * *. Our dynamic works. The discussions
that the Justices have with the attorneys during oral
arguments are a splendid dynamic. If you introduce
cameras, it is human nature for me to suspect that one
of my colleagues is saying something for a soundbite.
Please don't introduce that insidious dynamic into what
is now a collegial Court. Our Court works * * *. We
teach, by having no cameras, that we are different. We
are judged by what we write. We are judged over a much
longer term. We're not judged by what we say. But, all
in all, I think it would destroy a dynamic that is now
really quite a splendid one and I don't think we should
take that chance.\21\
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\21\Hearing of H. Appropriations Subcomm. on Financial Services and
General Government Fiscal 2008 Appropriations: Supreme Court, 110th
Cong. (Mar. 8, 2007), available at http://www.cq.com/
display.do?dockey=/cqonline/prod/data/docs/html/transcripts/
congressional/110/congressionaltranscripts110-
000002467922.html@committees &metapub=CQ-
Congtranscripts&searchIndex=5&seqNum=108 (last visited Feb. 7, 2008)
[hereinafter 2008 Supreme Court Appropriations Hearing] (statement of
Justice Anthony Kennedy).
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We feel very strongly that we have intimate knowledge
of the dynamics and the mood of the Court, and we think
that proposals mandating and directing television in
our courts is inconsistent with the deference and
etiquette that should apply between the branches * * *.
We've always taken the position and decided cases that
it's not for the Court to tell the Congress how to
conduct its proceedings. We feel very strongly that
this matter should be left to the courts * * *. We have
a dynamic that's different than yours: not better, not
worse, but different.\22\
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\22\Departments of Transportation, Treasury, HUD, the Judiciary,
District of Columbia, and Independent Agencies Appropriations for 2007:
Hearing before a Subcomm. of the H. Comm. on Appropriations, 109th
Cong. 225 (2006) [hereinafter 2007 Independent Agencies Appropriations
Hearing] (statement of Justice Anthony Kennedy).
Despite his reservations, Justice Kennedy has stated that
he thinks televising the Supreme Court's proceedings is
``inevitable.''\23\
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\23\James Rubin, Panel Would Admit Cameras, Mikes to Federal
Courtrooms Cautiously, The Associated Press, Sept. 10, 1990.
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Justice Souter explained in his confirmation hearing that
cameras on the Supreme Court pose certain risks, particularly
if they are distracting:
If the cameras are unobtrusive and are not making
sound that is distracting, that's one thing. There is
still a risk * * * Cameras which are obtrusive to oral
argument so that they really do distract your
attention. That is something that has to be avoided * *
*. [However,] [t]here is no question that there is a
value there.\24\
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\24\Confirmation Hearing on the Nomination of David H. Souter to be
an Associate Justice of the Supreme Court of the United States: Hearing
Before the S. Comm. on the Judiciary, 101st Cong., (1990) (statement of
David H. Souter). Some years later, Justice Souter explained that even
the slightest change in the dynamics of the Supreme Court's oral
arguments resulting from the presence of cameras would be unacceptable.
He stated, ``The day you see a camera come into our courtroom it's
going to roll over my dead body.'' Associated Press, On Cameras in
Supreme Court, Souter Says ``Over My Dead Body,'' (quoting statement to
House Appropriations Subcommittee, (Mar. 30, 1996).
At his confirmation hearing, Justice Thomas explained that
he did not have objections to televising Court proceedings in a
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nondisruptive manner:
Of course, Senator, at our court, we are an appellate
court, and there isn't much activity, other than fairly
intricate and detailed oral arguments. But I would have
no personal objection--of course, I can't speak for the
other judges or for the courts--to cameras being in
courts, as long as they were unobtrusive and did not
disrupt the proceedings.\25\
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\25\Confirmation Hearing on the Nomination of Clarence Thomas to be
an Associate Justice of the Supreme Court of the United States: Hearing
Before the S. Comm. on the Judiciary, 102d Cong., Pt.1, at 284 (1991)
(statement of Clarence Thomas).
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With respect to the court systems, the only
reservation that I would have is that it not be
disruptive of the exchange between the court and the
individuals who appear before the court. It is a
different environment, particularly at the appellate
level than perhaps at the trial court level, but I have
no objection beyond a concern that the cameras in the
court room be unobtrusive or as unobtrusive as
possible. Of course, that is just my own reaction. I
have not looked at that in detail.\26\
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\26\Id. at 385.
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I think it would be good for the American public to
see what is going on there. I do not know how long they
would be interested in what goes on in appellate
argument. It tends to be not so--it does not rivet your
attention, except maybe perhaps in the cases that have
garnered a tremendous amount of publicity, but I see no
reason why, beyond that concern, the American people
should not have access to the courts.\27\
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\27\Id. at 385-86.
Justice Thomas has explained since being on the Supreme
Court that he worries about the privacy and distortion effects
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cameras in the Supreme Court could have:
The primary point for me has been that regular
appearances on TV would mean significant changes in the
way my colleagues conduct their lives. My anonymity is
already gone. It's already affected the way I conduct
my own life. But for some of my colleagues, they've not
yet lost that anonymity. I think security is on the
foremost of all of our minds now since 9/11. I think
they'll certainly become even more significant with
more exposure.\28\
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\28\2008 Supreme Court Appropriations Hearing, supra note 21
(statement of Clarence Thomas).
Justice Thomas also stated, ``It runs the risk of
undermining the manner in which we consider the cases.
Certainly it will change our proceedings. And I don't think for
the better.''\29\
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\29\2007 Independent Agencies Appropriations Hearing, supra note
22, at 225 (statement of Clarence Thomas).
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Justice Ginsburg has stated that she believes televising
proceedings would benefit the public:
I don't see any problem with having appellate
proceedings fully televised. I think it would be good
for the public * * *. We have open hearings. If
coverage is gavel-to-gavel, I see no problem at all
televising proceedings in an appellate court * * *
televised appellate proceedings can convey at once a
picture not easily drawn in words spoken outside the
courtroom. One can also view television proceedings as
an extension of the U.S. tradition of open
proceedings.\30\
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\30\Confirmation Hearing on the Nomination of Ruth Bader Ginsburg
to be Associate Justice of the Supreme Court of the United States:
Hearing Before the S. Comm. on the Judiciary, 103d Cong., S. Hrg. 103-
482, at 262 and 576 (1993) (statement of Ruth Bader Ginsburg).
Justice Breyer sees both pros and cons to televising
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Supreme Court proceedings:
I think there are good reasons for it and good
reasons against it * * *. The best reason against it *
* * is the problem that we could become a symbol since
we are the Supreme Court, and if it was in our Court,
it would be in every court in the country, criminal
cases included.\31\
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\31\Interview by Brian Lamb, C-SPAN, with Stephen Breyer, Associate
Justice, Supreme Court of the United States (Dec. 4, 2005) (transcript
available at http://www.q-and-a.org/Transcript/?ProgramID=1052 (last
visited Feb. 7, 2008)).
Justice Samuel Alito previously supported televising
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proceedings in the Third Circuit:
I had the opportunity to deal with this issue
actually in relation to my own court a number of years
ago. All the courts of appeals were given the authority
to allow their oral arguments to be televised if they
wanted and we had a debate within our court about
whether we would, or whether we should allow television
cameras in our courtroom and I argued that we should do
it * * *. I will keep an open mind despite the decision
I took in the Third Circuit.\32\
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\32\Confirmation Hearing on the Nomination of Samuel A. Alito, Jr.
To Be an Associate Justice of the Supreme Court of the United States:
Hearing Before the S. Comm. on the Judiciary, 109th Cong., at 480-481
(2006) (statement of Samuel A. Alito, Jr.).
However, Justice Alito expressed concern that cameras in
the Supreme Court would change how Justices and lawyers
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interact in the courtroom:
Television coverage of the Supreme Court would not
simply let the public see what goes on before that
important institution, but would also in some ways
change what now goes on * * *. Some lawyers arguing
before the court in televised cases would use the
occasion to address the television audience for
political or other purposes * * *. [T]elevision might
well affect the Justices' questions.\33\
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\33\Samuel A. Alito, Jr., Address before the Association of the
Federal Bar of New Jersey (Apr. 11, 1996), available at http://
www.law.com/pdf/dc/ alito--amtrak.pdf (last visited Feb. 7, 2008).
This bill to permit the televising of Supreme Court
proceedings would require the Supreme Court of the United
States to permit television coverage of all open sessions of
the Court. Proceedings would be televised unless the Justices
decide by majority vote that allowing such coverage in a
particular case would violate the due process rights of any of
the parties involved. Allowing broadcast coverage of open
Supreme Court proceedings will substantially improve public
awareness and understanding of Court decisions and the law.
Our democracy works best when our citizens have access to
their Government. The judiciary lags behind the other branches
of our Federal Government when it comes to open access to
public proceedings. Except for rare closed sessions, the
proceedings of Congress and its committees are open to the
public and carried live on cable television, radio and webcast.
The work of executive branch agencies is subject to public
scrutiny through the Freedom of Information Act, among other
mechanisms. Since not all Americans can travel and wait in line
to witness these public proceedings, emerging technology could
allow the rest of the country to observe the Supreme Court at
work. This bill extends the tradition of openness to the
Nation's highest court in order to help all Americans be better
informed about the important decisions that are made there.
II. History of the Bill and Committee Consideration
On November 9, 2005, the committee held a hearing to
consider whether Federal court proceedings should be televised
and, in particular, to consider S. 1768, Senator Specter's
earlier version of this legislation, and S. 829, the Grassley-
Schumer ``Sunshine in the Courtroom Act of 2005.'' Among the
witnesses favorably disposed toward broadcasting Supreme Court
proceedings were Peter Irons, coauthor of May It Please the
Court;\34\ Seth Berlin; Brian Lamb, founder of C-SPAN; Henry
Schleif of Court TV Networks; and Barbara Cochran of the Radio-
Television News Directors Association and Foundation. Judge Jan
DuBois of the Eastern District of Pennsylvania, testifying on
behalf of the Judicial Conference, warned of concerns primarily
at the trial level, where witnesses may appear uncomfortable
because of cameras and, thus, might seem less credible to
jurors.
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\34\Guitton & Irons, supra note 4, at 95 (``If public access to
audio-tapes of oral arguments has given us what William Safire called
`a fascinating you-are-there experience and an ear to history in the
making,' I perceive no reason why the American people should not be
able to see these arguments as well.''); id. at 96 (``I do know, from
my experience with the Court's audio-tapes, that students, teachers,
and the American public have benefited from hearing them.'').
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In the 109th Congress the Judiciary Committee considered
and reported both S. 1768 and S. 829 on March 30, 2006. The
Committee voted to report S. 1768 by a tally of 12 yes and 6
no, and the bill was placed on the Senate Legislative
Calendar.\35\
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\35\See 152 Cong. Rec. S2602-01.
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At the beginning of the 110th Congress, Senator Specter
reintroduced his bill (S. 344) to permit television coverage of
the Supreme Court.\36\ This bill is cosponsored by Senators
Feingold, Schumer, Durbin, Grassley, and Cornyn.
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\36\See 153 Cong. Rec. S1257-03.
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On February 14, 2007, Associate Justice Anthony M. Kennedy
testified before the Committee concerning several issues
important to the Federal courts, including cameras in the
courtroom. He stated that:
The majority on my Court feel very strongly however,
that televising our proceedings would change our
collegial dynamic and we hope that this respect that
separation of powers and balance of checks and balances
implies would persuade you to accept our judgment in
this regard. We do not discuss a case before going on
the bench. It's a fascinating dynamic * * * This is a
dynamic that works. Please don't introduce into the
dynamic that I have with my colleagues, the insidious
temptation to think that one of my colleagues is trying
to get a soundbite for the television. We don't want
that * * *. We are judged by what we write * * *. We
think it would change our dynamic. We feel it would be
unhelpful to us * * *. We have come to the conclusion
that it will alter the way in which we hear our cases,
the way in which we talk to each other, the way in
which we use that precious hour, and we hope that the
Senate would defer to us as a coordinate branch of the
Government.\37\
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\37\Hearing of the S. Judiciary Comm. on Judicial Security and
Independence, 110th Cong. (2007), available at http://www.cq.com/
display.do?dockey=/cqonline/prod/data/docs/html/transcripts/
congressional/110/congressionaltranscripts110-
000002454456.html@committees&metapub=CQ-
CONGTRANSCRIPTS&searchIndex=0&seqNum=42,Feb.14,2007 (last visited Feb.
13, 2008) (statement of Justice Anthony Kennedy).
The bill (S. 344) was considered by the Committee on the
Judiciary on December 6, 2007. The Committee voted to report
the bill To Permit the Televising of Supreme Court Proceedings,
without amendment, favorably to the Senate. The Committee
proceeded by rollcall vote as follows:
Tally: 11 Yes, 8 No
Yeas (11): Biden (D-DE), Cardin (D-MD), Cornyn (R-TX),
Durbin (D-IL), Feingold (D-WI), Grassley (R-IA), Kohl (D-WI),
Leahy (D-VT), Schumer (D-NY), Specter (R-PA), Whitehouse (D-
RI).
Nays (8): Brownback (R-KS), Coburn (R-OK), Feinstein (D-
CA), Graham (R-SC), Hatch (R-UT), Kennedy (D-MA), Kyl (R-AZ),
Sessions (R-AL).
III. Section-by-Section Summary of the Bill
The legislation consists in its entirety of a single
section that would require the Supreme Court for the first time
to allow ``television coverage of all open sessions of the
Court unless the Court decides, by a vote of the majority of
Justices, that allowing such coverage in a particular case
would constitute a violation of the due process rights of one
or more of the parties before the Court.''
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 344,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
December 18, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 344, a bill to
permit the televising of Supreme Court proceedings.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
S. 344--A Bill to Permit the Televising of Supreme Court Proceedings
S. 344 would require the U.S. Supreme Court to permit
television coverage of all open sessions, unless a majority of
justices vote to bar such recordings. The Supreme Court
currently prohibits recording devices in the courtroom. CBO
estimates that enacting S. 344 would have no significant impact
on the federal budget.
S. 344 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Leigh Angres.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 344.
VI. Conclusion
Increasing public access to open Supreme Court proceedings
is in the public interest. The Supreme Court has repeatedly
observed in other contexts that ``[p]eople in an open society
do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from
observing.''\38\ Permitting people to see the Supreme Court in
action through the use of television cameras will advance
public understanding of Supreme Court processes and rulings.
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\38\Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986)
(quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572
(1980)).
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VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 344, as reported, are shown as follows (existing law
proposed to be omitted is shown in black brackets, new matter
is printed in italic, and existing law in which no change is
proposed is shown in roman type):
* * * * * * *
SECTION 1. AMENDMENT TO TITLE 28
(a) In General.--Chapter 45 of title 28, United States
Code, is amended by inserting at the end the following:
SEC. 678. TELEVISING SUPREME COURT PROCEEDINGS
The Supreme Court shall permit television coverage of all
open sessions of the Court unless the Court decides, by a vote
of the majority of justices, that allowing such coverage in a
particular case would constitute a violation of the due process
rights of 1 or more of the parties before the Court.
<all>