Governmental transparency is one of the foundational elements of a democracy. The ability for citizens to see their elected and appointed representatives in action, allocating their tax funds and legislating the course of their lives, contributes to accountability and civic education. Senators Grassley (R-IA)and Durbin (D-MO) purportedly seek to expand this core tenant of democracy in their recently introduced bipartisan bill that would mandate the installation of cameras in the Supreme Court. On its face, the bill is hard to criticize. It could create an exceptional learning opportunity for Americans young and old who seek to understand the inner workings of the justice system, and might allow the public to understand the Court’s thinking behind complex legal issues. In specific cases in which the justices believe the use of cameras would violate due process, the bill even allows them to vote on their exclusion, thus seemingly negating any constitutional concern over the live streaming of contentious cases on Fourteenth Amendment grounds.

However, there are legitimate reasons why the television Supreme Court proceedings is one of few issues on which none of the current Supreme Court justices look favorably. Indeed, upon closer examination of the legislation, one begins to notice serious flaws that could permanently alter the nature of the Court as an independent and contemplative body. The most obvious objection to the bill might simply be that it is unnecessary to accomplish its stated purposes. The Court already releases written and oral transcripts of their hearings within hours and days respectively and has been live streaming the audio of the hearings during the pandemic. Therefore, it is a formidable task for those who argue that cameras are necessary for educational purposes to explain why a visual accompaniment is required to understand a body that, in the words of Justice Kennedy, educates “by not having the television there … [it] teach[es] that we are judged by what we write, for the reasons that we give.” 

Instead of bringing additional educational value or transparency, many argue that the television of proceedings would create an insidious dynamic of political posturing and self-censorship. In the current “soundbite society” in which we live, it would be all too easy for snippets of the oral argument to be taken out of context and plastered across the evening news. While it is true that the same could be done with the audio clips currently released by the Court, viewers are distinctly engaged by seeing a dispute between a justice and an attorney with their own eyes, which in turn would motivate news outlets to utilize the clips at an increased rate. 

Encapsulated within this greater concern are the fears that justices may not press hard to get an answer from an advocate for fear of appearing biased or that attorneys may turn to theatrics to win points in the public arena. This trend of political grandstanding can be seen in Congress after the introduction of CSPAN, which televised their proceedings in real time. Surely, this cannot also be the ideal fate of the Supreme Court, an institution that has for so long maintained judicial independence and solemnity.  

Moreover, there exist constitutional concerns with the proposed legislation outside of the specific due process objections resolved in the bill itself. The legislative mandating of judicial procedure erodes the fundamental separation of powers upon which the American republic is built. While Congress may have limited authority to set forth rules of operation for the justice system under their enumerated Article 1 Section 8 powers, there is a longstanding precedent of judicial independence which has fostered faith in an independent judiciary. To go back on this separation could disintegrate the unique powers of the Court laid out in Article 3 and would create a slippery slope for further political infringement on a process that has become increasingly polarized in recent years. 

That being said, alternatives exist that could certainly bridge the gap between concerns of over-politicization and the benefits of education and transparency. While it may be too severe an intrusion to require cameras during oral arguments, televising the Court’s opinion announcements could be a viable middle ground. At that point in the judicial process, there exists far less motivation for justices to engage in self-censoring on political grounds, as the case has already been decided. At the same time, the oral announcement of an opinion is a prime learning tool for the public to understand the Court’s deliberation and legal thinking on a deeper level. Lastly, a sound bite from a case announcement would do little to misrepresent the justices themselves, as their words are merely the oration of the opinion that is being released to the public simultaneously. Thus, while constitutional objections might remain, the practical implications of such a shift would nevertheless improve upon the concerning bill’s framework.