Why Congress should impose TV cameras on the Supreme Court.

A few weeks ago, I wrote about a bill in Congress that would impose TV cameras on the Supreme Court, and I raised the question whether it might violate separation of powers. The other day, a journalist writing on the subject called me for an elaboration, and I had to admit that I didn't think there was much of any substance to the constitutional problem. Cameras in the conference room would be another matter. In any case, I think the public would be well served by the ability to see and hear these arguments, and much as I would prefer the Court to adopt cameras for itself and think it's rather intrusive for Congress to act, I think Congress should do it. I'll explain why.

First, let me point out this piece by Dahlia Lithwick that made me want to write about the subject again. She notes that it's blogging not television that threatens the Court's dignity these days and says:

If the high court doesn't make at least some concessions to the public, the American people will get to know its justices and their jobs through parody and politics alone.

Lithwick also notes how camera ready John Roberts is:

[Y]ou cannot attend oral argument these days without being slapped right in the nose by Roberts' youth. Not only is he significantly and markedly younger than almost all his colleagues, he's also clearly a product of the Age of Letterman. ... [T]he new chief is already making it clear that such acts of deluded grandeur are just not his style....

Indeed, one of the reasons Roberts fared so brilliantly at his confirmation hearings this fall was that he is so clearly a product of life after television (unlike, for one, the unfortunate Robert Bork). Roberts' total mastery of the medium—from his subtle comic timing to his gestures and demeanor—revealed right away that this was a guy raised on mass media....

But being raised on TV does not ensure that you will be good on TV. Bork's problem was not merely that he didn't grow up with television. He was a man of significantly less than average physical beauty. A stylist could have helped with better hair and makeup. But still, he was no John Roberts. Roberts is telegenic, and he would be even if TV were invented yesterday. And it's not just looks. It's manner, verbal ability, and the wit to display verbal ability in short bursts. John Roberts has all that. Few others do -- whatever their age.

So, we can't predict that a generational turn will make the Justices want to invite TV cameras into their presence. There will always be Justices who are more television ready than others, unless Presidents limit themselves to appointees that have the whole John Roberts set of attributes. But we already know that isn't going to happen. Harriet Miers was not television-ready, and neither is Samuel Alito. There just isn't that much television talent among those with the experience, ability, and character to belong on the Court. Why would such stars have holed up among the books all their lives?

But there is an even more important reason for the Justices to resist the cameras, and it is the reason I think it is most important for Congress to take the lead. The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices, as noted, are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanent but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

And I want to watch the arguments on television too.