III. Courtroom Transparency
Due to the COVID-19 pandemic, the Supreme Court conducted oral arguments over teleconference beginning in the 2020 Term. For the first time, oral arguments were routinely livestreamed, so the public could listen in from anywhere an internet connection was available. The Court has decided to continue livestreaming oral arguments for the first few months of the current Term (through December 2021), although it has not yet announced whether this practice would continue beyond that period. The present experiment in simultaneous audio has added additional fuel to a longstanding debate over whether there ought to be cameras in the Supreme Court’s courtroom, which is usually capable of seating only around 50 members of the general public at a time.
In many respects, the work of the Court has become more accessible over the past few decades. The Court’s opinions are available online for anyone to read or download, as are its orders, including decisions on petitions for certiorari. Even before arguments were livestreamed, recordings could be accessed after the fact in most modern cases. Still, the Court has never made the leap to allowing video streaming or video recording of its proceedings.
Proponents of cameras in the courtroom emphasize the potential educational, historical, and civic benefits of being able to see the Justices at work. Congress has introduced bills calling for cameras. Numerous members of the media and interested members of the public also urge video coverage. Moreover, lower federal courts and state courts have experimented with cameras, and scholars and judges have documented the results of those experiments.[163]
However, several Justices have made clear that they disfavor video recording and streaming of the Court’s proceedings.[164] They and other opponents of cameras raise concerns that being on camera may lead to grandstanding by attorneys or even by the Justices, that the nature of the discussion may become more scripted and less useful, and that video clips of the Court may be taken out of context and used to mislead the public.
As an alternative to cameras in the courtroom, the Court could continue its current practice of livestreaming audio of oral arguments. Prior to the pandemic, attendance at the courtroom was determined on a first-come, first-served basis, and important cases often attracted long lines and large crowds.[165] Critics have documented the unfortunate practice of paid line-standers, a problem the Court itself partially addressed in advance of one especially high-profile case.[166] Livestreamed audio is far more accessible; one does not need to be in Washington, D.C., to listen to arguments, and attendance is not limited by seats available.
