I am a big fan of the American system of government. Despite its flaws, the basic notions of freedom of thought, conscience and expression, and of government by and for the people, are unassailable principles, even if they are imperfectly applied.
What I like most about our system, and what separates us from most of the world, is that much of our public business is conducted in the open. By having access to public records and to government hearings and debates, we are able to fulfill our essential mission as citizens to monitor our government and change what we don’t like.
Without public access to records and meetings, we can never be sure that abuses are not occurring. As former Chief Justice Warren Berger wrote in 1980, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
But as committed as we say we are to openness and to citizen oversight, it’s unfortunate that we do not see more of our government in action than we do. This is especially the case with our courts, which remain too secretive, too forbidding and too hostile to citizen and media access.
While scrutiny of the executive and legislative branches of government has increased in recent years with independent prosecutors, constant media attention, freedom of information laws and C-SPAN coverage, the judiciary is still elusive.
Specifically, most states have not been willing to fully open up their courts and allow their proceedings to be documented by still and video cameras. All but two states and the District of Columbia do provide some access to their courts, but many, like Minnesota, require the consent of all parties, which means camera access is rarely granted.
By permitting camera access to our courts, in the same way we allow video coverage of all the workings of Congress, we help ensure that our courts are accountable, we prevent abuses from occurring, we help guard against mistakes being made and we help educate people about how the courts work and how our constitutional rights are applied.
As U.S. Attorney General Janet Reno said, cameras in courtrooms “give people the opportunity to see justice in action,” which she says helps build public confidence. Unlike the hysterical and hostile reactions of some judges to media attention, Reno acknowledges that “the potential that television has for properly informing the people, for educating our children, is (great).”
Among the fears of those opposed to cameras in courts are that the media would be an obtrusive presence and that witnesses and jurors might be intimidated. But in a three-year pilot project from 1991-94, cameras were allowed in many federal courts with very positive results. Most judges had no problem with the cameras and they reported that the media were largely cooperative, and witnesses and jurors were unfazed.
Despite these findings, the Judicial Conference, a policy-making body of federal judges headed by Chief Justice William Rehnquist, ignored the evidence and issued a ban on cameras in all federal courts. This was later amended to allow federal appellate courts to permit camera access if they wished. Only two federal appellate courts have done so.
A breakthrough occurred earlier this year, however. The U.S. House of Representatives passed a bill that would allow camera access in all federal trial courts. The bill has not passed the Senate and its future is uncertain. But if the Senate would simply listen to the testimony of the federal judges who dealt with cameras during the 1991-94 experiment, they would pass the legislation immediately.
Similar measures to open up state courts were being considered a few years ago and were gaining momentum in several states.
And then came O.J.
Nothing has been more damaging to the cause of cameras in the courts than the O.J. Simpson trial, which, because it was so long, so spectacular, so controversial and ultimately so unsatisfying (to many people), the lens that made it all visible took much of the blame.
But the camera wasn’t the problem. The problem was that Judge Lance Ito had absolutely no control over his courtroom, media coverage was over the top, the prosecutors were inept and Johnny Cochran, through some last-minute histrionics, was able to manipulate the jury.
Would we have been better off if we had not been able to see the witnesses, to observe their reactions, to watch Ito fawning over the “Dream Team,” to see the glove-fitting debacle or to witness Cochran’s final act of obfuscation? Would it have been better if these things were merely described to use by print reporters? Would the outcome have been different?
Not only were cameras not the problem with the Simpson trial, they clearly served an educational function. Not since Watergate have average Americans engaged in such matter-of-fact conversations about the limits of the Fourth Amendment, the definition of hearsay and the purpose of preliminary hearings. The Simpson trial was Civics 101. And that would not have been possible without cameras.
Whatever arguments might reasonably be made to keep cameras out of trial courts, they are bogus when applied to appellate courts, including the U.S. Supreme Court. There are no witnesses in appellate proceedings — just the lawyers for each side and a panel of judges.
So why has the Supreme Court been so adamantly opposed to camera coverage of oral arguments before the Court, which, by the way, are open to the public? Why would Justice David Souter tell a congressional appropriations subcommittee that “the day you see a camera come into our courtroom it’s going to roll over my dead body?”
There are really only two reasons. One, the justices think cameras will somehow cheapen the sanctity of the Supreme Court and diminish the reverence people have for it. In other words, they think it’s useful to perpetuate the myth that the Supreme Court is a panel of astute demigods — pillars of wisdom and judgment whose decisions are not to be challenged.
The other reason, which no justice is likely to admit, is that the justices enjoy their lack of celebrity. They like the fact that they can go to the grocery store without being recognized. Because most Americans couldn’t tell Clarence Thomas from Clarence Darrow, or Ruth Ginsburg from Ruth Buzzy, the justices are able to conduct their lives in relative anonymity.
But these justices are appointed for life and they exercise extraordinary power over our lives. That their desire for privacy should come before their need to be accountable is ridiculous in a society committed to open and responsive government.
We can’t fulfill the promises of democracy without an active and engaged citizenry. And we can’t presume to live in a just society unless we are continually monitoring the processes of government from the enactment of ordinances in our city halls, to the administration of justice in our courts. Cameras are a useful tool in our oversight efforts, and they should be welcomed into our courtrooms, not feared.
Erik Ugland is the Daily’s readers’ representative. He welcomes comments about his column or the Daily at [email protected].