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.