The main argument against it, as stated by the resistant Justices, is that some Justices would showboat for the cameras and try to get the sound bite of the day. I think an unspoken reason why they resist cameras — when they release audio to the world — is that they don't want us all checking our how they look, particularly if they look tired and old. As I said back in 2005:
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.A new counterargument occurs to me as I reread that. A President with the power to appoint a new Supreme Court Justice will think about how well the nominee will represent the administration's political agenda on TV. He'd want someone who looks and speaks persuasively to the public through the new medium.
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.
Justice Kagan talked about making people feel so good about the judiciary, and, obviously, she intended to convey the notion that the Justices stick to legal arguments and apply themselves to puzzling through the various texts. But if one Justice — say, Elena Kagan — has the skill and charisma to project into the camera and make her approach to interpretation lodge in the minds of the people, those who support the other "side" would want an equivalently powerful voice. That good feeling could be comfort with the abuses of power by the other branches of government or a complacency that whatever we need and want can be provided by a benevolent Court.
And yet, I suspect, that if people had more access to the arguments, we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now. I know I would love the ability to make clips from the video to incorporate into blog posts that discuss and explain the issues. Of course, I would jump at the opportunity to extract funny little things for all sorts of diverse bloggerly purposes. But the Court, like the other branches of government, deserves to be laughed at too.
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