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Jewish World Review Dec. 2, 2003 / 7 Kislev, 5764

Nat Hentoff

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The invisible Supreme Court | Supreme Court Justice David Souter has said "the day you see a camera come into our courtroom, it's going to roll over my dead body." But the Supreme Court — which decides cases that affect millions of Americans — is not his court. It's ours.

In Richmond Newspapers Inc. v. Virginia (1980), where two reporters challenged a judge's decision to close a murder trial to the press and public, Chief Justice Warren Burger, writing for an 8-to-1 majority of the court about the necessity for open courtrooms, said: "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."

Thomas Jefferson wrote that, "there is no danger I apprehend so much as the consolidation of our government by the noiseless, and, therefore, unalarming instrumentality of the Supreme Court."

The U.S. Supreme Court will not permit televising of its oral arguments. Accordingly, most Americans — if pressed — do not even know the names of all nine of the most powerful people in this country.

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By watching oral arguments, as I have at the court, you not only learn about the cases, but also about the justices — the acuity of their questions, their temperaments, and how they often criticize the other justices in the guise of the questions they pose to the lawyers before them.

On July 6, when two of the justices — Sandra Day O'Connor and Stephen Breyer — appeared for nearly half an hour on ABC's "This Week" with George Stephanopoulos, this rare sighting of members of the highest court in the land was heavily reported by the media. It was so unusual because the justices are shrouded in such secrecy that even in the transcripts of their oral arguments, the justices are not identified by name as they ask questions.

Columbia Journalism Review reporter, Karen Aho, in the September/October issue, noted that "in 1996, a Radio-Television News Directors Foundation study found that only 4 percent of people who got their news from television could name the (Supreme Court's) chief justice." Years before, I was in Justice William Brennan's chambers just after the release of a National Law Journal survey, which showed how many Americans knew the names of the justices.

Justice O'Connor, then the only woman on the Supreme Court, was named by more than 20 percent of those surveyed. But only 5 percent knew of Justice Brennan. When I mentioned that, Justice Brennan chuckled and, referring to another member of the court, said "Harry Blackmun got only 1 percent!"

Justice Brennan told me he wanted cameras at the oral arguments because the citizenry at large knows so little of what the court does, and therefore does not understand as much as it should about the effects of the court's decisions.

So why are justices still hiding from us? One reason is that they cherish their privacy. Ruth Bader Ginsburg told the Canadian publication Lawyers Weekly a few years ago:

"David ... can go to the supermarket and do his shopping, and no one will notice." How nice for Justice Souter!

And I once heard, on television, the late Justice Byron White say, during an appearance at a seminar, "It's very selfish I know," but, he added, he preferred anonymity.

The reason some other justices often offer as to why they keep cameras out of their courtroom was given to law students at Stanford University: "They say they are not a part of a national entertainment network."

And in the Sept. 15 Washington-based Legal Times, William Suter, the head clerk of the U.S. Supreme Court, who strongly opposes televising oral arguments, told reporter Jonathan Ringel that "he feared late-night comics such as Jay Leno would try to use television images to make fun of the justices, which Suter said would be 'degrading to the judiciary.'"

More degrading to open constitutional democracy is the Supreme Court justices' extreme distance from the rest of us. Leno would at least get more people aware of the court; and C-Span has pledged to carry the oral arguments in full. Many other television stations would give enough time to respectfully allow Americans to get to know the court.

Dahlia Lithwick, Supreme Court correspondent for Slate online magazine, wrote in The American Lawyer: "Imagine if Congress or the president conducted themselves like so many stealthy vampires — all in darkness and a swirl of black cloth." But Justice O'Connor urges us to "try and understand the ideas that gave the Constitution life."

Why, then, Justice O'Connor, can we not sit via television in your, and our, courtroom?

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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