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Monthly Archives: February 2014

What bootlegged video might tell us about cameras at the Supreme Court

If the Supreme Court is the Marble Temple, then yesterday the public received an unprecedented glimpse into its sanctum sanctorum, courtesy of a video attributed to a group calling itself 99Rise. The highlight was a protester, Noah Newkirk, who rose during Wednesday’s oral argument to denounce the Court’s Citizens United ruling. (The case at hand during the session concerned patents.) The justices are hard to see and harder to hear, but they are captured in the bootleg footage and can be viewed by anyone with broadband. Can we draw any inferences as to what this event might mean for the push in some quarters to televise Supreme Court oral argument?

A prominent claim made by opponents of televised proceedings is that cameras will change the behavior of participants. Attorneys might be tempted to play for the TV audience and behave in ways inconsistent with the decorum the justices expect. It’s hard to imagine that the typical case heard by the Court would attract the kind of behavior associated with the attorneys in the O.J. Simpson trial, still Exhibit A for banning cameras. But there are a few cases with the potential to become public spectacles, and these are the ones the justices presumably have in mind.

There’s also concern about how the presence of cameras might affect the justices. The camera makes them visible to outside audiences they might wish to court, but it also leaves them vulnerable to criticism, possibly based on unrepresentative snippets of the proceedings. Indeed, Jeffrey Toobin recently argued that the justices’ desire to keep cameras out reflects their fear of being lampooned by The Daily Show.

This video can’t tell us very much about how the justices’ behavior might be affected by cameras in the Court, because the justices were unaware that they were being filmed. But it does offer up a previously unexplored reason why the justices might have cause to exclude cameras: the incentives that cameras could provide for spectators to disrupt the proceedings. It is possible that Newkirk might have chosen to protest irrespective of whether a camera was there to record his utterances and share them with the world. But despite the ubiquity of reporters at Supreme Court oral argument, and no shortage of cases sufficiently controversial to inspire outbursts, similar disruptions have occurred only twice in the past two decades. Video gave Newkirk’s brief speech an immediacy that simply could not have been duplicated by print media. (Or by the Supreme Court’s official transcript, from which the disruption had been scrubbed.) Perhaps the regular presence of video will encourage future disruptions like Newkirk’s. The Supreme Court isn’t about to provide the opportunity to find out, but the experience of jurisdictions that do allow cameras might shed some light.

My question for the Supreme Court’s Silent Bob*

Justice Clarence Thomas’s abstention from participation in Supreme Court oral argument has passed the eight-year mark, and Jeffrey Toobin does not like it at all: “His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” According to Toobin, the justice’s silence is problematic because it reflects a disengagement that signals disrespect for the advocates appearing before him, his colleagues on the Court, and the public, which is denied any other glimpse of the nation’s top judges thinking through the legal issues at hand. Michael McGough responds by observing that Thomas is hardly reticent about expressing his views in his written opinions, or in public addresses off the bench, and that Toobin places too much significance on what happens during oral argument. Thomas’s silence, while “strange,” hardly merits the New Yorker headline, “Clarence Thomas’s Disgraceful Silence.”

I’m ambivalent on the significance we should attribute to Thomas’s behavior. On one hand, when I see students of mine declining to participate in class discussions, even on subjects I would expect to attract their interest, I wonder if they’re really all there. At the same time, if those students perform well on the exams and write papers that display engagement with the subject matter, I tend not to worry as much. (One reason I grade exams blind is so that I won’t be tempted to cut any slack to frequent participants.) Students who tune out, however, do give me reason to think about whether the content and classroom presentation are providing something of value to them.

Justice Thomas has made clear that oral argument offers little value to him. The justices, in his view, receive sufficient information from the briefs and lower court opinions, and oral argument proves a distraction at best. Unlike my less engaged students, Thomas lacks the Hirschmanian (?) exit option; cutting oral argument isn’t a viable option for him. (My students’ incentive to stick around, the class participation component of their course grade, has no analogue for Thomas.) But he does have the Hirschmanian voice option: advocacy on behalf of abolishing oral argument.

To the best of my knowledge, Thomas has not publicly called for the elimination of oral argument. If given the opportunity to speak with Thomas, I’d love to ask him (1) whether he would favor that action, (2) if so, why he has not spoken publicly in favor of it, and (3) (assuming his support) whether he has privately lobbied his colleagues  on the matter. I imagine he’d probably find little support from his colleagues on the chattiest bench in Supreme Court history, but he might be able to persuade the public that the Court could make better use of the dozens of hours that would become available to the justices each year. Such advocacy could be Thomas’s way of lighting a candle instead of silently cursing the darkness.

* For those of you who are unfamiliar with Kevin Smith’s directorial output, Silent Bob is a recurring character played by Smith. In contrast to his motor-mouthed and frequently profane buddy Jay (who, if Silent Bob is Thomas, must be Scalia), Silent Bob says nothing for most of each film. Typically, there will be a key scene toward the end of the film during which he shares his wisdom (here’s a very-NSFW montage) Maybe the Thomas analogy breaks down here….