Just a Matter of Time? Video Cameras at the United States Supreme Court and the State Supreme Courts

I. INTRODUCTION The long-running debate over webcasting and broadcasting oral arguments in the Supreme Court of the United States has recently moved to the United States Senate. (1) As the material collected in this article suggests, all indications are that the Supreme Court will continue to drag its heels on the subject. In marked contrast, however, state supreme courts have blazed a significant technological trail with some twenty-one state supreme courts now offering live video webcasts of their oral arguments, and four additional states planning to do so in the immediate future. This article examines the reluctance of the United States Supreme Court to take the lead in this area, but it also highlights the considerable strides made by the state supreme courts that have assumed the mantle of leadership. (2) II. BACKGROUND In March of 2006, we in Arkansas were presented with two seemingly disparate views on the subject of broadcasting oral arguments in the Supreme Court. There was, first, an opinion expressed by Justice Breyer that televising oral arguments in the Supreme Court was "almost inevitable." (3) Yet he saw pros and cons to such a development. It would be a "terrific education" in cases like the term-limit litigation that originated in Arkansas. (4) But the countervailing considerations, he pointed out, were the potential for opening the door to televising all criminal trials and for perpetuating the misconception that oral arguments actually decide cases on appeal, when in actuality they are only a "small part" of the appellate process. (5) He cautioned that the Court should "go slow" in this area so as to protect its institutional integrity. (6) Then, from Nina Totenberg, National Public Radio's legal correspondent, came a less encouraging statement. In an interview following a panel discussion at the Winthrop Rockefeller Center, she raised the chimera of justices transformed into celebrities, which would increase the number of security threats made against them. (7) More recently, she expressed a fear, first imparted to her, she says, by ABC commentator George Stephanopolous, that this most impressive institution--the Supreme Court of the United States--with its formalities and mystique, would be diminished if television cameras were allowed to intrude into its courtroom. (8) Presidents, she went on, might then be more inclined to select Supreme Court nominees based on their attractiveness to the public rather than on their legal acumen. (9) These statements prompted me to consider reviewing both the recent history of the debate over web-based or broadcast access to arguments at the United States Supreme Court and the experiences of state supreme courts that have entered the webcast or broadcast arena. The pages that follow are the result of that review. III. THE UNITED STATES SUPREME COURT A. Inside the Court Despite the hopes of some--the media in particular--that a new Chief Justice would lead the Supreme Court into an age of televised oral arguments, this has not proven to be the case. Last year, the Chief Justice announced his disenchantment with such an innovation at the Ninth Circuit's annual Judicial Conference. (10) In his remarks on that occasion, he pointed out that educating the public is not the purpose of oral argument, but rather oral argument helps appellate judges "learn about a particular case in a particular way." (11) Still later, the Chief Justice voiced a hesitancy to "tinker" with the procedure for oral argument. (12) It is, he concluded, a "valuable tool" that has in its present form served the court well. (13) He did point out, however, that audio discs or tapes are made available by the court in certain cases and that the Court's experience with audio has been "generally good." (14) Other justices on the Court have been even more caustic about video recording of oral arguments. Justice Souter, in his now famous remark, offered that "the day you see a [television] camera come into our courtroom, it's going to roll over my dead body," (15) and Justice Scalia has mused that video recordings made during oral argument would "miseducate and misinform," (16) and he has also noted that the Justices "don't want to become entertainment. …