- The Washington Times - Wednesday, June 1, 2016

Allowing cameras to capture Supreme Court oral arguments would give Americans an unfiltered look at how the judiciary branch works, government investigators have found, yet the high court itself remains leery, saying the debut of video would invite grandstanding by lawyers while only spotlighting a smidgen of what the justices do.

The Government Accountability Office interviewed a series of judges and lawyers about their experiences before the cameras in federal and state appeals courts and looked at English-language courts abroad, hoping to root out the pros and cons of taping the justices.

Many said live-streaming and TV reports helped the public digest the appeals process and understand how judges apply legal precedent. It also gave the public a front-row seat to debates that can affect millions.

The main drawback, stakeholders say, is that sound bites and clips can be taken out of context or distorted in the media, so courts may want to tape the proceedings themselves and control distribution.

For decades the media, advocates and lawmakers have urged the Supreme Court to air oral arguments, much as C-SPAN broadcasts live action from Congress on a series of TV and web channels.

The high court also bars live audio of oral argument, though it does tape sessions and releases the audio at the end of the week. In rare instances it will release audio the same day as the oral argument.

Supreme Court justices have said the advent of video could affect how lawyers and the justices themselves act during oral argument, and that much of what they do is on paper anyway through briefing and opinion writing.

“Justices have emphasized that the court’s written decisions stand as the court’s most important and enduring work — work that should not be overshadowed by one piece of the decision-making process,” the court’s press liaison told the GAO.

Each federal circuit court of appeals is allowed to decide for itself whether to allow cameras for oral arguments, and the results have been mixed. The GAO said only two of the 13 circuit courts allow video coverage by the media.

Nine circuit courts generally post audio recordings of arguments on the same day they’re heard.

The Supreme Court remains a notable holdout. In 1996, then-Justice David H. Souter said a camera would have to “roll over my dead body” to enter the courtroom.

“It may just be tradition at the Supreme Court. Some of the justices seem very wedded to that and feel very strongly,” said Carl Tobias, a law professor at the University of Richmond.

The GAO found that judges and lawyers are particularly worried that reporters with little to no legal training would take key sound bites out of context.

But that same pitfall applies to the current system, with transcripts released hours after each argument and audio released by the end of the week. And some of those surveyed by the GAO said releasing video could actually help clear up erroneous reporting.

For now, there’s little evidence of a shift in attitudes, but Mr. Tobias said it’s coming.

“I think if the chief justice were to come out in favor [of cameras], that might make a difference,” he said. “I think it will happen, it’s only a matter of when.”

Some in Congress aren’t waiting. Sen. Richard J. Durbin, Illinois Democrat, is pushing a bill that would require the Supreme Court to permit TV coverage of open sessions of the court unless a majority of justices decide that airing a particular case would violate the due process rights of anyone before the court.

“The Supreme Court is the final decision maker on many of the most important issues of our time, yet all but a select few Americans will ever see the court in action,” Mr. Durbin and Rep. Mike Quigley, Illinois Democrat, said in response to the GAO’s findings. “While people may certainly disagree on the outcomes of court rulings, the American people deserve the opportunity to see the public proceedings of our highest court.”

Within the last decade, a trio of English-language countries with similar legal systems — Canada, the United Kingdom and Australia — have begun to record or live-stream their high courts with their own video equipment.

By doing it themselves, they told the GAO, they can control what it filmed and delay broadcasts that contain sensitive information, such as the name of a sexual assault victim.

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