Predictably, both Justices expressed reluctance when they were asked their views on the subject by Rep. Mike Quigley (D-Ill.) at a sequestration hearing held earlier today by the House Appropriations Subcommittee. This inevitable, “while we have you here” type of question always seems gets answered the same way:
“We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give,” Kennedy said, saying he believed the majority of his colleagues felt the same way.
The Justices continued, echoing much of what I've since come to view as the strongest argument
against allowing cameras:
[Kennedy] and Breyer both expressed concern that cameras present during oral arguments would fundamentally change the way justices operate.
“We feel, number one, that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because were on television. I just don’t want that insidious dynamic to come between me and my colleagues,” Kennedy said.
I have no doubt that this “insidious dynamic” would have an effect on the Justices, some perhaps more than others. It would be a big step for the Court to allow cameras, and once that genie is out of the bottle, it would be difficult, if not impossible, to put it back in. A mistake in judgement, as with any other question the Court finds itself called upon to answer, could have significant consequences, so their cautious approach comes as no surprise.
While perhaps not as immovable as some of his other colleagues — he likes the idea of cameras for certain oral arguments — Justice Breyer, as it stands today, shares his colleague's apprehension, alluding to the respect for tradition that remains so important to the Court:
“We’re a very conservative institution … and the last thing any of us would like to do is to make it worse as an institution,” Breyer said. “People who you would find surprising, I won’t say who they are, they come to me and they say, ‘Be careful, you think it won’t affect your questions. … If you see on television a person taking a picture of you and really mischaracterizing [what you say], … the first time you see that, the next day you’ll watch a lot more carefully what you say. Now that’s what’s worrying me.”
Not too long ago, Justice Sonia Sotomayor had expressed a change-of-heart on the issue — having been initially receptive to the idea,
she has since reversed her position, agreeing, more or less, with what her two colleagues said at today's hearing.
As I mentioned in my last diary on the subject, I'm starting to agree with them. Since we already have transcripts and audio available to us shortly after the arguments take place, I have a hard time coming up with a use for visual documentation that isn't political in nature. And while it might seem appealing — and potentially useful — to watch Justice Thomas sit in silence or Scalia breathing fire as he attacks counsel, Fox News is arguably much better positioned to help Republicans take advantage of a liberal Justice's out-of-context comment than we are in letting Scalia's comments stand on their own.
Regardless of where those of us outside the Court stand on the issue, Kennedy's and Breyer's comments today leave little doubt that the Court remains steadfast in its opposition to the visual documentation of oral argument. Given the degree of dehabilitating partisanship that's permeated nearly every issue facing the country today, the Justices can hardly be blamed for their desire to keep the Court from becoming yet another political circus attraction.