Faculty Blog, Singer

Decoding Judge Kavanaugh’s “Open Mind” on Supreme Court Cameras

In one of the more substantive moments of this month’s Supreme Court Confirmation Theater, Judge Brett Kavanaugh was asked whether he would support broadcasting video of the Supreme Court’s oral arguments. Kavanaugh demurred, saying only that he would keep “an open mind” on the issue. Given that most members of the Supreme Court have come out against cameras in recent years, it is tempting to read Kavanaugh’s response as a polite but similarly firm vote against the use of video. But I suspect there is something more at work here, and that we should take his “open mind” characterization at face value.

To understand why, it is necessary to consider how the Supreme Court views itself in relation to its external environment. The Court (and indeed, the entire federal court system) is an organization whose primary purpose is to resolve legal disputes. To accomplish this goal, the Court needs resources, including money, staffing, and public legitimacy. But the Court has no ability to generate these resources on its own. It must obtain them from somewhere else, be it Congress, the President, the media, the bar, or the public. This is an uncomfortable position to be in, because the loss or diminution of even a single important resource can interfere with the Court’s ability to perform its basic work.

The Court is not unique in this respect: nearly all organizations are resource-dependent in some way. But such organizations do not take their resource dependency sitting down. Rather, they actively work to protect themselves from resource disruption by placing strict internal controls around their most essential activities. And the Supreme Court controls its core activities better than most. It alone selects which cases—and how many—it will hear each Term. It sets its own argument calendar, and insists on strict time limits for oral argument. And it sharply limits access to oral arguments to a select few observers on any given day. By setting rigid rules about its practices, and embracing formality, the Court is able to create a largely predictable setting in which it can perform its essential work.

From the Court’s perspective, courtroom cameras would erode this carefully controlled setting. Indeed, the current Justices have offered a theoretical parade of horribles that video cameras would unleash, ranging from protests or disruptions in the courtroom, to lawyers playing to the cameras, to selective editing of arguments by the media. Never mind that these issues have not arisen at the state level, where cameras have been in place for years.  It is safer, easier, and more reassuring to stick with the current no-cameras policy.

To date, the Court has been able to avoid implementing cameras because its external resource providers have not demanded them. But that could change. Congress, which controls the Court’s purse strings, is considering a new bill that would mandate the use of audio in the Supreme Court and video in the federal courts of appeal. And the public, which grants the Court most of its necessary legitimacy, increasingly expects that government organizations will use livestreaming technology as a transparency measure. At some point soon, Congress or the public may threaten to reduce or withhold their resource contributions if the Court does not open itself to cameras. At that point, the Court would have to reconsider its policy—and Judge Kavanaugh’s “open mind” is very likely a quiet acknowledgment of this reality.

Jordan M. Singer is a Professor of Law at New England Law | Boston. Professor Singer also runs a personal blog The Interdependent Third Branch.

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