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Is It Time For Video Cameras At The Sixth Circuit?

Posted in News and Analysis

Today is the big day at the U.S. Supreme Court.  The Justices will begin hearing over 6 hours of oral arguments over the next three days on the constitutionality of the Patient Protection and Affordable Care Act, Public Law 111-148, including the constitutionality of the mandate requiring individuals to purchase health insurance.  We have been following the health care challenge for over a year now, especially after the Sixth Circuit became the first appellate court in the country to rule on (and uphold) the health care statute’s constitutionality.  See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  This is the most time that the High Court has devoted to oral arguments since the 1966 challenge to the voting Rights Act, making this a truly historic day. 

There undoubtedly will be numerous protestors outside the Court today.  But there is something we will not see at the Supreme Court today: video cameras.  The Supreme Court rejected requests from numerous news organizations, including C-SPAN, to provide live video coverage of today’s historic oral arguments.  Instead, the Court will release audio recordings of the oral arguments on the same day. 

Video cameras have never been allowed at the U.S. Supreme Court, and the challenge to the health care statute will be no exception, despite the “extraordinary public interest” over the case, as the Court itself acknowledged.  The Justices themselves are split on the idea of video cameras.  Some of the newer members of the Court appear to be receptive to video coverage of oral argument.  Justice Elena Kagan, for example, called video cameras a “terrific” idea during her confirmation hearing two years ago.  Justice Antonin Scalia, on the other hand, has expressed opposition to video cameras, stating back in 2005 that “15-second take-outs on the network news” would “misinform the public rather than inform the public.”  Finally, Justice Souter took a definitive stance on the issue in 1996 when he famously stated, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”

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It’s a slightly different story in the federal appellate courts, with two of the thirteen Circuits allowing video coverage.  In 1996, the Judicial Conference of the United States began allowing video camera coverage of oral arguments in the Circuit Courts at each Circuit’s discretion.  To date, the Second and Ninth Circuit allow such video coverage

Court watchers over the years have debated the pros and cons of allowing video cameras in the courtroom.  Proponents of video coverage argue that cameras will make the judiciary more accessible to the public and allow citizens to become more educated about one of the least visible branches of government.  Critics of video cameras, by contrast, argue that video cameras will diminish the dignity of the judiciary and contribute to a media circus, particularly in high profile cases.  

While the debate rages, it is noteworthy that the Supreme Court of Ohio regularly televises oral arguments on both its website and on public television, and it does not appear that the dignity of the Court’s proceedings has been affected in any way.  At the same time, video coverage of oral arguments has given Ohio citizens access to a part of the judicial process that they ordinarily would never have seen, allowing them to see members of the Ohio Bar regularly interfacing with the Justices on important legal questions of the day.  

Is it time for the Sixth Circuit to reevaluate whether video cameras should be allowed at oral argument?  Let us know what you think.