Moving Beyond Cameras in the Courtroom: The Supreme Court, Technology, and the Media

I. INTRODUCTIONNews media, legal blogs, and law reviews routinely cite a panoply of reasons why the Supreme Court will not permit the televising or videotaping of oral arguments: the Justices' desire for anonymity, ' the risk that creative editing of sound bites will mislead the public,2 the risk that the Justices' questions and comments will be taken out of context,3 the need to separate the judicial process from the political branches of government,4 a lack of confidence in the public's ability to understand the proceedings,5 and the concern that both the lawyers and the Justices will grandstand for the cameras.6 More cynical commentators believe that the Justices are reluctant to be recorded on camera because of their view that their branch is exceptional.7 Others suggest that the Justices "are simply not used to being second-guessed."8Another common explanation is that the Supreme Court has resisted modern communications technology because the Justices do not understand new technology9 and are indeed "hostile to [it]."10 As the Wall Street Journal Law Blog put it, "Maybe the justices are against cameras in the court because when they think of cameras, they think of those huge cameras on tripods with the cloth to cover the photographers and the supernova flash-bulbs."11 Indeed, Judge Posner recently wrote that "the current justices have - though this is not new - a low comfort level with science and technology, and with complex commercial transactions, at a time when technology (including "financial engineering") is playing an increasingly large role in culture and society."12The goal of this Article is to examine the theory that the Court's reluctance to embrace not just cameras but modern communications technology more generally is based on the Justices' own lack of understanding of and hostility to this technology. To accomplish this goal, the Article considers the Justices' use of technology in their personal and professional lives as well as their understanding of communications technology in oral argument and written opinions. First, the Article examines the Court's changing use of technology to communicate with the press and public in the twentieth and twenty-first centuries as well as the various comments Justices have made in their Qpublic remarks regarding their personal understanding and use of technology. The Court has plainly been slow to embrace new communications technology, and the Justices' personal use of technology is consistent with those in their respective peer groups. Second, the Article examines the Court's understanding of communications technology as reflected in its oral arguments and written decisions in the last two decades.13 This section concludes that the Court's resistance to cameras in the courtroom and other technological advances in public communications does not stem from ignorance of technology. By and large, the Court's opinions actually indicate a remarkable understanding of technology. Instead, these opinions reveal that the Court is often cautious in the face of technological developments not because the Justices do not understand those developments but rather because they are not confident that they can predict the future of technology and the development of social norms that will surround its use. Furthermore, the Court is generally hesitant to revisit its prior decisions and pre-existing doctrinal framework and often chooses to issue more narrow decisions to avoid the difficult jurisprudential questions new technology can present.The third and final section of this Article concludes that the Court's reluctance to embrace modern communications technology has less to do with its lack of understanding of that technology and more to do with its concerns about the modern media culture. While the Court's resistance to cameras in the courtroom may diminish with time, it does not appear that we will see cameras at the Court anytime soon. In the meantime, rather than focusing solely on convincing the Court to permit cameras to record its proceedings, advocates for increased public access to the Court's work should devote at least part of their energy to thinking beyond cameras to other ways in which the Court could evolve to accommodate the expectations of the public in a changing media environment. …