President Joe Biden’s forthcoming Supreme Court nominee will face a barrage of inquiries about her judicial stances, but one likely question will have nothing to do with how she would decide a case: whether to allow cameras into the courtroom for oral arguments.
The debate over televising hearings at the high court has raged for years, with members of Congress and public interest groups advocating for cameras in the courtroom during proceedings that are typically only publicly available in the form of audio recordings.
A number of sitting justices oppose the introduction of cameras to oral arguments because doing so could change the way lawyers, and even fellow justices, perform during hearings.
Chief Justice John Roberts has remained against televising Supreme Court proceedings, arguing cameras could interfere with justices’ ability to decide cases fairly.
“I think it would be very helpful in getting more people familiar with how the court operates. But that’s not our job, to educate people,” Roberts said during a 2018 interview. “Our job is to carry out a role under the Constitution, to interpret the Constitution and laws according to the rule of law.”
Roberts said cameras could “impede” the performance of justices by enticing lawyers and some justices to “act differently.”
“That would affect what we think is a very important and well-functioning part of the decision process,” Roberts said at the time. “I don’t think there are a lot of public institutions, frankly, that have been improved in how they do business by cameras.”
Members of the public can currently access oral arguments through livestreams of audio recordings, which television networks have played live for high-profile cases.
During oral arguments late last year in a major abortion case, Dobbs v. Jackson Women’s Health Organization, cable networks played whole chunks or snippets of oral arguments in prime time, drawing public attention to a process that typically unfolds outside the mainstream view.
The Supreme Court began releasing real-time audio of oral arguments in 2010. Previously, audio recordings of oral arguments weren’t available until the term in which they were made ended and the next term began. The court did not begin recording the audio of oral arguments until 1955.
Justice Stephen Breyer, whose retirement will create the vacancy that Biden is preparing to fill, declined in 2009 to publicize his view on Supreme Court cameras but laid out arguments before and against.
“A positive would be it’d be quite educational for people to see. And I think what they’d discover [is] nine people who do their job and an institution that works pretty well,” Breyer said at the Aspen Ideas Festival in 2009.
Breyer said an argument against the introduction of cameras to the Supreme Court involves the risk that lower courts might increasingly emulate the decision to televise proceedings in contexts where cameras might be inappropriate.
“People would worry because of the symbolic value of the court, that the television would then be in every courtroom in the country, including all the criminal cases, where you have concerns about witnesses and jurors and intimidation and so forth,” Breyer said.
“The second argument that people sometimes make is that it wouldn’t be understood very well, that this oral argument is only 5% of what goes on,” Breyer added. “Most of it is in briefs.”
Other justices have expressed concerns about how political groups could weaponize video of oral arguments for partisan ends.
Justice Samuel Alito in 2017 cited an episode involving former Solicitor General Donald Verrilli to argue against televising hearings.
Alito noted that Verrilli delivered strong oral arguments across three different sessions in defense of former President Barack Obama’s Affordable Care Act but stumbled over his words for just a few seconds at one point in his presentation.
The Republican National Committee used audio of the stumble in a political ad attacking him and Obamacare. Alito said videos of oral arguments could similarly and routinely be weaponized for political purposes if hearings were televised.
“People would be producing sound bites or quirky little things that happen,” Alito told an audience at an event in 2017. “It would be extracted, and that would immediately be on cable news. And the value of oral argument in the decision-making would be diminished.”
The idea of televising Supreme Court proceedings has generated bipartisan interest.
Republican Sen. Chuck Grassley and Democratic Sen. Dick Durbin jointly introduced a bill last year that would require the Supreme Court to televise all open hearings unless the majority of justices voted that filming arguments in a given case would violate the due process rights of someone involved.
Other senators have introduced similar proposals for years. The late Sen. Arlen Specter pushed for televised Supreme Court hearings in 2009.
Current and former justices have continued to oppose the idea of cameras in the courtroom over concerns that the practice could change the dynamic of the institution in unintended ways.
Retired Justice Anthony Kennedy, who stepped down in 2018, acknowledged in 2013 that benefits of televising Supreme Court hearings exist, including that lawyers who are preparing to argue before the justices for the first time could have more resources to prepare and that there would be an educational value to the public in televising the hearings.
“We feel that, No. 1, that our institution works,” Kennedy said during 2013 testimony before the House Judiciary Committee.
“We are a teaching institution, and we teach by not having the television in there, because we teach that we’re judged by what we write, by the reasons that we give,” he said.
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Justices Elena Kagan and Samuel Alito, both from different ends of the ideological spectrum, said in 2019 that the nine justices had not discussed the idea of televising hearings over the past few years, even in private.
But it is a question that lawmakers often pose to justices.
During his 2017 confirmation hearing, Justice Neil Gorsuch said in response to a question about the issue that he would keep an “open mind” to the idea of cameras at the Supreme Court but said he had no firm opinion on it.
