An easy fix to SCOTUS’ legitimacy crisis

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Editor’s Note: Raul A. Reyes is an attorney and a member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are his own. Read more opinion at CNN.

CNN  — 

Oral arguments resume at the Supreme Court next week, with student debt relief, immigration and labor relations among the cases on the agenda. The top US court will hear from some of the nation’s finest attorneys on issues impacting the daily lives of Americans.

But sadly, only a tiny subset of our fellow citizens will be able to watch the justices in action. That’s because the high court still forbids any video recording in its courtroom. Now more than ever, this outdated policy needs to change.

Supreme Court proceedings are no secret: The court already provides transcripts and audio recordings of oral arguments. And 50 seats are set aside for the general public to attend oral arguments in the courtroom.

But many people can’t or don’t know how to readily access those transcripts, which in any case, don’t convey tone of voice, body language and other nuances of the exchanges between the justices and attorneys appearing before them during oral arguments.

And competition for the limited number of seats can be fierce, often involving lining up in the early morning hours – or sometimes even camping out the night before – to be permitted entry.

Why should access to oral arguments be limited to the well-connected? Or to people who live in or near Washington, DC, and who may be in a position to spend hours at the Supreme Court?

Allowing cameras into the courtroom – in much the way that C-SPAN currently broadcasts and re-airs proceedings of the US House of Representatives and Senate – would provide Americans a window into what one nonpartisan advocacy group called “the most powerful, least accountable part of government.”

Broadcasting coverage of Supreme Court arguments is an idea that is neither radical nor partisan. In 2016, the Government Accountability Office released a report examining the potential value of live audio and video coverage of the high court’s proceedings. The GAO concluded that cameras would increase civic interest and educate the public about the judiciary.

And there can be little doubt about public interest in such proceedings: Americans have shown they’re willing to tune into politics when afforded the opportunity. Millions of people tuned in for the January 6 committee hearings, for Trump’s first impeachment trial and for his second second impeachment trial.

Nevertheless, Chief Justice John Roberts was less than encouraging when he was queried in 2018 on the subject of introducing cameras in the courtroom.

“[W]e’re a very cautious institution. I think our process for hearing and adjudicating cases is working very well, and I think changing something as dramatically as televising the proceedings I think would be harmful and I do worry,” Roberts explained.

Given how the court’s conservative majority tossed aside decades of precedent to overturn Roe v. Wade last year, it is hard to see how Roberts’ description of the court as “a very cautious institution” – to say nothing of his assertion that the court’s processes are working well – squares with reality.

In fact, just the opposite is true, at least in terms of the public’s perception. Trust in the Supreme Court is at a record low. According to Gallup, only 4 in 10 Americans say they approve of how the Supreme Court is handling its job; nearly 6 in 10 disapprove.

Several of the current justices, including Roberts, Samuel Alito and Elena Kagan, who seemed open to the idea of cameras while they were nominees, changed their minds once they were seated on the bench. Another justice, Sonia Sotomayor, in a 2019 TV interview suggested that introducing cameras might encourage showboating, in an institution that prides itself on its reserve and sense of decorum. “Every decision we make is written, fully explained, fully defended, fully laid out. But you can’t do that and maintain a show,” Sotomayor said.

However, no one is seeking a show. The public simply deserves the opportunity to watch the court at work – as they might watch meetings held by their local school board or city council. It’s hardly a big ask, considering the nine justices have lifetime appointments – and an outsize impact on Americans’ lives.

Some legal experts who agree with Sotomayor argue that live cameras in the courtroom will result in lawyers performing for the cameras, or might encourage protesters determined to disrupt the court’s proceedings. They fail to understand that the justices – aided, of course, by marshals and court officers – can manage their own proceedings. And, frankly, if dysfunctional behavior does break out in the court, the public should be able to see and judge it for themselves.

Any downside of cameras is outweighed by the immense benefits of judicial openness. But the high court is out of touch and disinclined to reform itself. The only way to get to that outcome comes via the legislative branch. The new Congress should mandate camera access at the high court, a move last attempted in bipartisan legislation in 2021. The measure failed to advance in Congress.

In his annual report on the state of the federal judiciary, Roberts failed to address controversies swirling around the court, including last year’s leak of a draft copy of the Dobbs decision prior to its official announcement; a New York Times report alleging the leak of the 2014 Hobby Lobby opinion; and efforts by Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to get Republican officials to challenge the outcome of the 2020 presidential election – which Thomas said after the fact that she regretted.

As the high court grapples with a profound legitimacy crisis, bringing transparency into its decision-making process would be good for the public – and for the court itself. Opening its deliberations to greater public scrutiny can only help this beleaguered institution.