Bills
| 3.23.22

Should Supreme Court Proceedings be Televised? (H.R. 1025)

Do you support or oppose this bill?

What is H.R. 1025?

(Updated September 5, 2019)

This bill — known as the Eyes on the Courts Act of 2017 — would require the presiding judge of a U.S. appellate court, including the Supreme Court, to permit the photographing, electronic recording, audio-visual coverage, broadcasting, televising, or live-streaming of appellate court proceedings to or for the public. Exceptions could be made if the judge determines, either independently or upon a motion of a party, that making proceedings public either violates a party’s due process rights or is not in the interests of justice.

The Judicial Conference of the United States would create mandatory guidelines with respect to the management and administration of photographs, recordings, broadcasts, television segments, or streaming video that results from this coverage of the courts.

Additionally, the presiding judge of each appellate court could impose rules and disciplinary measures for the courtroom use of any form of media or media equipment, as well as the acquisition or distribution of any of the images or sounds obtained in the courtroom.

Argument in favor

Court decisions are an important part of American public policy, and televising court proceedings will help the public better understand court decisions and processes. The American people should be allowed to watch proceedings that affect them, and may even be more likely to accept judicial decisions if they can observe oral arguments and decision announcements.

Argument opposed

The work of the nation’s appellate courts and Supreme Courts is largely textual — live or broadcasted coverage of proceedings cannot fully capture the considerations in play when justices make decisions. Televising court proceedings could encourage grandstanding, playing to partisan interests, or lead to misunderstandings about the court’s workings or decisions.

Impact

Court journalists and court media; court coverage; appellate courts; and the Supreme Court.

Cost of H.R. 1025

A CBO cost estimate for this bill is unavailable.

Additional Info

In-Depth: Rep. Jerrold Nadler (D-NY) introduced this bill to bring important cases into public view by requiring that cameras be allowed in all Supreme Court and federal appellate court proceedings:

“Public scrutiny of government proceedings, and an informed citizenry, is essential to democracy. But, most courts are closed to cameras, effectively putting them off-limits to the public at large. Transcripts and audio recordings, some of which are made available days, or in some cases even weeks, later, are poor substitutes for the immediate visual experience…. Clearly, there is great interest in wider access to court proceedings, and I see no reason the public should be prevented from witnessing the other important cases considered in the federal courts. I respect the difficult and important job that the federal judiciary performs. If my bill becomes law, the public will have an opportunity to watch them in action, and to gain a greater understanding and appreciation of their critical work.”

Eric Segall, writing in the LA Times, contends that the time when cameras in courtrooms presented unknown risks is past, and that the benefits of cameras in courtrooms are documented and justify cameras in the Supreme Court:

“There may have been a period when cameras in courtrooms presented unknown risks, but that time is long past. Fifty state supreme courts already allow them, including the Texas Supreme Court, which live-streams and archives all of its oral arguments…. The U.S. 9th Circuit Court of Appeals live-streams its arguments, as do other courts of appeals from time to time. Cameras are also allowed in courtrooms in Britain, Canada, Brazil and many other countries. There have been virtually no negative reports or safety issues resulting from this widespread use of cameras in courtrooms. With its long tradition of overruling unconstitutional state and federal laws, the Supreme Court is the most powerful judicial tribunal in the world. If any court should be televised, it is the Supreme Court.”

The Government Accountability Office (GAO) and American Bar Association (ABA) have both previously expressed support for televising Supreme Court proceedings. The GAO believes that televising Supreme Court proceedings could give the public more visibility into how the judiciary works, while the ABA believes it would be sensible for the Supreme Court to be aligned with state courts, many of which already allow cameras.

Supreme Court Justice Stephen G. Breyer has recently stated that he is not ready to allow the public to watch Supreme Court proceedings because cameras might change the nature of oral arguments. Justice Breyer’s views reflect the opinion of all the Supreme Court justices, with the notable exception of recently confirmed Justice Neil M. Gorsuch, who said during his confirmation hearings in March that he was “open” to the possibility of cameras in the courtroom. Judge Brett Kavanaugh said during his confirmation hearings in September that he too is open to the idea, but wanted to discuss the matter with the current justices should he be confirmed.

Writing in CQ Researcher, Edward Whelan, President of the Ethics and Public Policy Center, argues that there is much to be lost, and little to be gained, by televising Supreme Court proceedings:

“[T]hose interested in following the Supreme Court live in a Golden Age that is dramatically different from even a decade ago. Supreme Court opinions — by far the most important material for studying the court — are posted online as soon as they are announced. Briefs, the best resources for learning about pending cases, are also widely available online, including [via a link] on the Supreme Court’s website. And instead of relying on generalist Supreme Court reporters, members of the public can consult a broad range of expert analysis and commentary on the Internet. Oral arguments at the court attract a degree of attention that dwarfs their actual importance. But here too, anyone eager to read the tea leaves of oral argument now has ample opportunity to do so. The court makes argument transcripts available online on the very day of argument—typically within 90 minutes—and posts audio recordings of arguments at the end of each week. It is difficult to see how televising oral arguments would add much to the abundant stock of available information.
By contrast, the potential downside of televising Supreme Court proceedings is substantial. The culture of the court is, for good reason, predominantly textual. The overwhelming majority of the justices’ work consists of reading and writing, with reasoned deliberation among the justices about the meaning of legal texts…. [T]he likely consequences [of broadcasting] for the Supreme Court would be sharply negative—and far more so than for any other appellate court, given the Supreme Court’s much higher profile. In particular, cameras at oral argument and at sessions in which rulings are announced would encourage and reward political grandstanding by the justices (as well as by counsel and protesters in the courtroom). Whether or not the justices actually succumbed to the temptation to play to the national viewing audience—and what reason is there to think that, sooner or later, they wouldn’t?—their colleagues would often suspect they had. The court would become more politicized, and the resulting resentment and distrust among the justices would disserve the ideal of reasoned deliberation.”

There are two cosponsors of this bill, both of whom are Democrats.


Of Note: The Supreme Court held in 1981 that states may adopt rules permitting cameras and recording equipment in their courts. Since then, all 50 states have adopted rules on cameras and recording equipment in their courts, but rules vary widely. In some states, visual and audio coverage is permitted in all types of court proceedings that are public, and in others such coverage is permitted only in appellate courts.

Camera coverage of federal courts is more limited. The Supreme Court prohibits camera coverage of its proceedings, but releases audio recordings of each week's oral arguments at the end of each week and has provided near-contemporaneous access to the audio recordings in several high-profile proceedings since the presidential election cases of 2000.

The Judicial Conference of the United States, which makes policy and rules for the federal courts, allows federal circuit courts to permit cameras in appellate arguments. However, only two federal appellate courts, the U.S. Court of Appeals in New York City (2nd Cir.) and the U.S. Court of Appeals in San Francisco (9th Cir.), have voted to allow camera recording of oral arguments.

Legislative efforts to allow cameras in federal trial and appellate courts have been introduced repeatedly in Congress, but have never passed.


Media:

Summary by Lorelei Yang

(Photo Credit: iStock / Vladstudioraw)