About the Author: Kelsey Movsowitz is a first-year law student at the American University Washington College of Law. She hopes to pursue a career in media and communications law.

 

The Supreme Court is two months into one of its most impactful terms in recent history.[1] But it is not just the cases on the docket that make the October 2021 term so unique, it is when Americans will be able to hear the oral arguments.

In the nation’s highest court, one seemingly small technological advancement has made this term more accessible than ever before: livestreaming. The Supreme Court announced in September that, for the first time, the Court itself would provide a live audio feed for all oral arguments during the first three months of the October term.^[2]

This may seem like an insignificant change, but the implications are vast. Despite the importance of their decisions, for decades the Supreme Court has resisted cameras or recordings at oral arguments.[3] Before 2020, only a lucky few who camped outside the court could hear the arguments in real time. Then, in April 2020, the Court was forced to conduct oral arguments via telephone due to the COVID-19 pandemic, completely changing the typical procedure and allowing media organizations to livestream the argument audio.^[4]

Now that the court has, at least temporarily, opened real-time access to the public, many people are wondering why it was ever shrouded in secrecy.

The controversy over courtroom transparency is a long-running debate in the United States. In 1981, the Supreme Court made a historic decision in Chandler v. Florida, ruling that Florida could allow some media coverage of a case even if the defendant objected.^[5] The Chandler decision allowed every state in the country to enact some sort of audio or video provision in their state courtrooms.[6]

But to this day, federal courts are still shrouded in darkness. While two federal circuit courts and three district courts allow video cameras in certain circumstances, most federal courts still prohibit live media coverage.^[7] The Supreme Court’s 2020 exception was merely that, an exception. The October 2021 term rules did not include any mention of livestreaming audio, leaving experts wondering if the Court will return to its old ways as soon as the pandemic is over or, at least, more manageable.^[8] As the court transparency organization, Fix the Courts, said in a press release, “The omission suggests that backsliding to week’s-end audio releases could happen post-pandemic. That would be an awful development that anyone who has a justice’s ear must forcefully oppose.”^[9]

For over a decade, leaders in both chambers of Congress have tried to push the federal courts into the light through legislation. In every Congress since 1999, senators on both sides of the aisle have introduced court transparency legislation.^[10] In the current Congress, senators have introduced two such bills: the Sunshine in the Courtroom Act and Cameras in the Courtroom Act.[11] Earlier this year, the two bills were the first of their kind to get past the Senate Judiciary Committee.^[12] While both bills would allow judges in all federal courts, including the Supreme Court, the choice to permit cameras in courtrooms, the Cameras in the Courtroom Act would shine even more light on the Supreme Court.^[13] It would only allow the Supreme Court justices to stop the televising of oral arguments if allowing coverage in a particular case would violate the due process rights of one of the parties.^[14] The Sunshine in the Courtroom Act would give the other federal courts more discretion. It includes several provisions that would protect the identities of witnesses and jurors when needed.^[15]

Despite the bills’ unique bipartisan support, there is a reason no courtroom transparency bill has ever passed. Congress is deeply split on live media coverage of the courts. Detractors fear a further polarization and politicization of the Supreme Court that could come from greater and more instantaneous access to oral arguments.[16]

Meanwhile, supporters of greater court transparency have grown more emphatic in the past year for two reasons. First, the various COVID-19 protocols courts took in the past year proved that they have the technology needed to, at a minimum, livestream audio of arguments. Second, media coverage of the guilty verdict for the murder of George Floyd showed the potential for covering historic court decisions live. Ahead of the verdict, networks took the time to recap the charges, give trial analysis, and even explain court procedure.^[17] Senator Amy Klobuchar (D-MN), a co-sponsor of both transparency bills, said that the coverage of the verdict was an example of the benefits of allowing media access to the courtrooms.^[18]

While many Americans might have never heard of these transparency bills, the idea of broadcasting Supreme Court arguments is supported by most of the public. A 2018 survey conducted by C-SPAN found that 64% of voters think the Supreme Court should allow television coverage of oral arguments.^[19]

Yet, for now, it seems unlikely that either bill will be the first courtroom transparency bill to pass the Senate. Until Congress can come to a decision, or the Supreme Court changes its long-held stance on transparency, Americans must rely on the temporary expansions of live audio of oral arguments and hope that these options will not go away when the Supreme Court returns to completely in-person arguments.

[1] See e.g. Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021).

^[2] Press Release, Sup. Ct. of the U.S. (Sept. 29, 2021), https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-29-21.

[3] See Lysette Romero Córdova, Will SCOTUS Continue to Livestream Oral Arguments and are Cameras Next? Let’s Hope So, Am. Bar Ass’n (Aug. 24, 2021), https://www.americanbar.org/groups/judicial/publications/appellate_issues/2021/summer/will-scotus-continue-to-livestream-oral-arguments-and-are-cameras-next/.

^[4] Id.

^[5] Chandler v. Florida, 449 U.S. 560, 583 (1981).

[6] See id.

^[7] Video Broadcasting from the Federal Courts: Issues for Congress, Cong. Rsch. Serv. 2 (Oct. 28, 2019) https://sgp.fas.org/crs/misc/R44514.pdf.

^[8] See Clerk of the Supreme Court of the United States, Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States (Oct. 29, 2021), https://www.supremecourt.gov/Guide%20for%20Counsel%202021.pdf.

^[9] Live Audio Will Be Back. But for How Long? Fix the Ct. (Sept. 21, 2021), https://fixthecourt.com/2021/09/live-audio-will-back-long/.

^[10] Bill Search, Congress.gov, https://www.congress.gov (choose “Legislation” from dropdown; then search “supreme court” and “broadcast”; then filter to “Senate Committee: Judiciary” and “Senate Sponsor : Grassley, Chuck [R-IA]).

[11] See Josh Gerstein, Senate Committee Approves Legislation to Put Supreme Court Hearings on Camera, Politico (June 24, 2021), https://www.politico.com/news/2021/06/24/senate-supreme-court-hearings-on-camera-496067.

^[12] See id.

^[13]Grassley, Klobuchar Reintroduce Bipartisan Bill to Allow Cameras in Federal Courts, Committee on the Judiciary (Mar. 19, 2021), https://www.judiciary.senate.gov/press/rep/releases/grassley-klobuchar-reintroduce-bipartisan-bill-to-allow-cameras-in-federal-courts.

^[14] See Cameras in the Courtroom Act, S. 807, 117th Cong. (2021).

^[15] See Sunshine in the Courtroom Act of 2021, S. 818, 117th Cong. (2021).

[16] Video Broadcasting from the Federal Courts: Issues for Congress, 23 supra note 7.

^[17]See Tom Jones, The Derek Chauvin Verdict: How Did the Media do with Coverage? Poynter (Apr. 21, 2021), https://www.poynter.org/newsletters/2021/the-derek-chauvin-verdict-how-did-the-media-do-with-coverage/.

^[18] See Gerstein, supra note 9.

^[19] C-SPAN/PBS Supreme Court Survey 2018, C-SPAN (Aug. 28, 2018), https://www.c-span.org/scotussurvey2018.