Limited Seating

Limited Seating 4/14/2013 8:00 PM Eastern

Once again, a nation focused its attention on a magnificent courtroom in northeast Washington, D.C. And, once again, the justices on the nation’s highest court responded with technology that was state of the art — in the 19th century.

Internet streaming? TV cameras? A live radio broadcast?

Not exactly. The Supreme Court let the American people hear the arguments that shape their lives only after those arguments were over. From an audio recording.

The Supreme Court routinely slams the courthouse door on the public interest. The late-March arguments on same-sex marriage were no different. Countless state and federal institutions allow the citizenry to see their government in action via television cameras. But at the Supreme Court, viewing is limited to the number of available seats.

The system works well for ticket scalpers who can charge up to $6,000 for a seat and for wealthy Hollywood celebrities who can pay someone to hold their place in line. But it does not work at all for the American people who, presumably, have some interest in the work of their most important deliberative body.

For years, David Souter’s “over my dead body” defined the court’s position on televising arguments. In retirement, Souter decries the public’s lack of civic knowledge, failing to see either the value of television in raising awareness or the irony in his positions.

The court’s most prominent opponent of cameras today is Justice Antonin Scalia — who once barred television cameras from a ceremony in which he received an award for his service to the First Amendment. Scalia sat down last year with C-SPAN founder Brian Lamb, an old friend from their Nixon administration days, and explained his opposition to cameras.

“I am against it because I do not believe, as the proponents of television in the court assert, that the purpose of televising our hearings would be to educate the American people,” Scalia said.

Although C-SPAN would broadcast oral arguments in their entirety, Scalia said he was concerned that “what most of the American people would see would be 30-second, 15-second takeouts from our arguments.” When Lamb suggested that newspaper articles off er similar issues of context, the justice responded, “People read that and they say, ‘It’s an article in a newspaper and the guy may be lying, or he may be misinformed.’ But, somehow, when you see it ‘live’ … it has a much greater impact. I am sure it will miseducate the American people, not educate them.”

Under Scalia’s analysis, then, the meme “binders full of women” might disqualify the presidential debates for live television. For Scalia, less video, less exposure for the court — less information — somehow equals more. But while the high court has obviously never mandated television cameras in its own courtroom, it has affirmed the right of the media, even armed with cameras, to be in a courtroom.

Appellate courts are tightly ordered proceedings featuring seasoned lawyers. The hearings operate without even a trial court’s risk of shocking evidence, combative cross-examination or theatrical witnesses.

Scalia’s and Souter’s personal preferences and their colleagues’ collegial capitulation notwithstanding, oral arguments are hardly the stuff of sound bites or viral video. And we’re talking about C-SPAN, not TMZ. We’re not talking about The Real Housewives of Washington, D.C. This is the Supreme Court. The televised hearings would offer all the sensationalism of Book TV.

Lawyers, college professors and even TV executives as distinguished as Lamb are clearly at a disadvantage when arguing with someone whose title includes the word “Supreme.” Meanwhile, it’s fun to imagine what a tough judge like Scalia would do to any lawyer foolish enough to approach the Supreme Court with the kind of arguments that keep TV cameras — and the public — out of the Supreme Court.

Longtime journalist and attorney Dan Trigoboff teaches media studies at Methodist University in Fayetteville, N.C.

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