Gorsuch Makes Customary Promise on Cameras in SCOTUS

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By Kimberly Strawbridge Robinson

U.S. Supreme Court nominee Neil Gorsuch promised to keep an “open mind” about cameras in the high court during his confirmation hearing March 22.

It’s a promise other justices have made during their confirmation hearings.

But the current justices—often portrayed as deeply divided on other issues—are now seemingly unanimous in their opposition to cameras in the courtroom.

Still, Sens. Chuck Grassley (R-Iowa), John Cornyn (R-Texas), Amy Klobuchar (D-Minn.) and Richard Blumenthal (D-Conn.) all spoke favorably about putting cameras in the Supreme Court during Gorsuch’s days-long confirmation hearing.

The intrusion on the justices would be minimal in comparison to the educational value that video of Supreme Court oral arguments would provide, Cornyn said March 22.

It’s “a bit odd that this Congress is again choosing to push the Supreme Court on video, given “how far federal appeals courts have come on audio in the last few years,” Gabe Roth of Fix the Court, a non-profit organization advocating for more transparency at the high court, told Bloomberg BNA March 22.

The Supreme Court has previously provided same-day audio for some high-profile cases, most recently in the same-sex marriage case, Roth said.

Over Dead Body

Access to our courtrooms is important and having cameras in the Supreme Court would help improve that access, Grassley said March 22.

He noted fierce opposition from the Supreme Court justices themselves.

Justice David Souter, who retired in June 2009, said there would be cameras in the courtroom over his dead body, Grassley said.

Though he respects that opinion, Grassley said it was wrong. Cameras in federal courtrooms would bring about a better understanding of the courts and their important work, he said.

Cornyn, pointing out the numerous cameras in the hearing room where the Senate Judiciary Committee was considering Gorsuch’s nomination, said the intrusion is minimal. But cameras could have a big impact on the public’s understanding of the judiciary’s role in the federal government, he said.

Legitimate Concerns

But not all Judiciary Committee members are on board with cameras in the Supreme Court.

There are legitimate concerns with allowing cameras in federal courts, Sen. Jeff Flake (R-Ariz.) said.

Flake wondered aloud what conduct cameras would incentivize if allowed in the Supreme Court.

He used the confirmation hearing as an example.

During the hearing, Gorsuch was frequently questioned about a labor case, Am Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1206 (10th Cir. 2016), in which Gorsuch disagreed with the ultimate ruling in favor of the employee.

That case was a pretty boring one when it was in a cameraless courtroom, but in this televised hearing it’s become a case about ruling against the “little guy,” Flake said.

Legislation Introduced, Again

Klobuchar noted that she had recently introduced bipartisan legislation that would place cameras in the Supreme Court and other federal courtrooms.

Those bills are S. 649 Camera in the Courtroom Act and S. 643 Sunshine in the Courtroom Act, according to Roth. There are similar bills in the House of Representatives, he said.

Bills like this have been introduced in previous Congresses, but have failed to gain traction.

Still, Grassley noted that many on the Judiciary Committee agree that the federal courts should be open to media coverage.

In fact, 76 percent of voters think that the Supreme Court should televise their oral arguments, according to a recent C-SPAN/PBS survey.

Not Much Thought

Although the issue has been hanging around Congress for several years, Gorsuch said he hadn’t given it much thought.

That may be because the court on which Gorsuch currently sits, the U.S. Court of Appeals for the Tenth Circuit, is one of only three federal appellate courts—including the Supreme Court—that doesn’t “routinely release same-day audio,” Roth said.

Roth said that one of those courts, the Eleventh Circuit, has agreed to begin posting same-day audio soon.

To get audio from the Tenth Circuit, you generally have to file a motion, Roth said. However, he said the circuit does “release audio without a motion for some high profile cases.”

Open Mind?

Gorsuch promised, however, to keep an “open mind” about cameras in the Supreme Court.

And while that’s something other Supreme Court justices have promised during their confirmation hearings, they seem to have come out on the other side after getting on the bench.

Roth noted that Chief Justices John G. Roberts Jr. said he didn’t have a set view on cameras in the courtroom during his confirmation hearing. Roberts said he’d want to confer with his colleagues on the matter.

More recently, however, Roberts has raised concerns about “grandstanding” by judges and lawyers.

Similarly, Justices Sonia Sotomayor and Elena Kagan made favorable statements about cameras in the courtroom during their confirmation hearings, but have recently expressed hesitance on the issue.

Why Video?

Only time will tell how Gorsuch will feel about cameras in the courtroom once—and if—confirmed to the high court bench.

But Roth says it’s odd Congress is pushing the Supreme Court on this issue given recent progress on live audio in federal courts.

“The Ninth Circuit’s livestream of Washington v. Trump last month showed that live audio of compelling court cases has great civic value and will have a huge audience,” Roth said, referencing the more than one hundred thousand individuals who tuned in to hear arguments over President Donald Trump’s “travel ban.”

The Supreme Court could follow the Ninth Circuit’s and other circuit courts’ lead on providing live or same-day audio.

Most Transparent

In the meantime, Roberts has already lauded the judiciary as the most transparent branch of government.

The Supreme Court is required to explain its reasoning in decisions that all justices sign, Roberts said.

Moreover, the high court’s oral arguments are open to the public. The court also makes transcripts available to the public the same day and audio recordings available the Friday after the hearing.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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