Former President Donald Trump’s trial in Fulton County, Georgia will be livestreamed and televised, but his federal trials in Florida and Washington, D.C. will not. That’s because of the federal judiciary’s ban on cameras in the courtroom.
That ban is championed by Chief Justice John Roberts, who chairs the Judicial Conference of the United States, the body that sets policies for the federal courts. In 2018, Roberts opined on the issue of how cameras could help educate people about what the court does, saying: “That’s not our job to educate people.”
His former colleague Justice David Souter put it even more strongly when he testified before a House Appropriations Committee in 1996, saying, “the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Souter retired in 2009, so he never had to deal with that grim potential circumstance.
But what’s really behind this fear of cameras?
I lack the credentials to make a clinical diagnosis, but it’s possible the justices could be suffering from a form of scopophobia—the fear of being watched—a condition not specifically recognized in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), but which could be categorized under the diagnostic criteria for specific phobias, such as social anxiety disorder.
In 1906, a psychiatric journal described this condition as “a fear of being seen and a shamefacedness, which one sees in asylums—a morbid dread of being seen.”
The justices would almost certainly beg to differ about whether this is why they fear cameras, as they have already made various rationalizations for opposing the transparency that livestreaming and television would bring.
The late Justice Antonin Scalia opposed cameras because he didn’t trust the media to get it right, but likely also because he believed that the common citizen wouldn’t understand the proceedings. A sentiment reflected in his remark that “the University of Chicago Law Review is not sold at the 7-Eleven.”
“SCOTUS today is an institution weakened by the disease of secrecy.”
Retired Justice Anthony Kennedy opposed it because he didn’t trust his colleagues to refrain from showboating—a possibility he called an “insidious dynamic” that might “destroy a dynamic that is really now quite a splendid one.”
Justice Clarence Thomas felt cameras would undermine “the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.”
But this mysterious “splendid dynamic” and unspecified “manner” smacks of an elitist view that the masses cannot be trusted to understand the rarefied intellectual airs of the high court. Never mind that a multitude of state courts regularly allow broadcasting of their trials and the federal courts even tried out a pilot program—none of which caused the state and federal judicial systems to crash and burn.
This resistance to the transparency brought by cameras echoes the high court’s refusal to adopt a code of judicial ethics that makes them the only court in the country to have no ethics code. This refusal was described by one legal scholar as “a matter of petulance, not principle, that reflects a stunning lack of concern for its own declining legitimacy.”
Justice Scalia died in 2016 and Justice Kennedy retired in 2018, so neither is on the high court now—as it faces an all-time low in public confidence.
Ironically, it’s been the revelations about luxurious trips given to the justices by wealthy “friends”—like the one to the resort that Scalia was staying at when he died—that have gravely undermined confidence in the court.
Added to that are the revelations about Justice Thomas’ two decades of secret luxury trips provided to by the billionaire Republican mega-donor Harlan Crow—trips that would have cost Thomas as much as half a million dollars out of his own pocket for a single excursion. (There was also Thomas’ refusal to recuse himself from a case where he voted to stay an order directing former President Trump to obey a subpoena for records that included correspondence from Thomas’ wife, Ginni Thomas, who had been a vocal supporter of efforts to overturn the 2020 election.)
The high court’s attitude toward technology can be ridiculed for its backwardness. Although early experiments with radio were done by Nikola Tesla in the 1890s, the justices only allowed live audio of their hearings during the COVID-19 pandemic in May 2020. The pandemic also seemed to allow the justices to discover the invention of the telephone, as they allowed teleconference oral arguments for the first time even as the rest of the world turned to video conferencing. Perhaps someday they will get around to television, which was first demonstrated in 1927.
But making fun of SCOTUS for being tech dinosaurs runs the risk of missing the bigger threat, which is the court’s strategy to slow-roll the ability of technology to instantly shed light onto the workings of the high court and all of the federal judiciary.
Although SCOTUS has recognized the right of public access via the press to cover trials under the First Amendment, the reality of access is quite different. Few people make the time to go physically in person to watch trials, and for those who want to watch the Supreme Court in action, the access is so limited as to be meaningless. The court’s process for public access allows only 50 seats for general public access to its hearings. Livestreaming would make access available to hundreds of millions on demand.
SCOTUS today is an institution weakened by the disease of secrecy. Real transparency through meaningful financial disclosures, an enforceable code of ethics, and allowing the public to see their work could be a first step towards a cure.
The justices—all of whom surely pride themselves on the value of a classical education—may want to remember the words of Hippocrates, who may have been the first to describe social phobia as the condition of a person who “loves darkness as life and cannot endure the light or to sit in lightsome places.”