Bloomberg News

Health-Care Case Tests Supreme Court’s Ban on Live Broadcasts

February 09, 2012

Feb. 6 (Bloomberg) -- The historic U.S. Supreme Court battle over President Barack Obama’s signature health-care legislation -- with 5 1/2 hours of arguments planned over three days on a matter that affects every American and may influence the 2012 elections -- will test the justices’ refusal to allow live broadcasts of their proceedings.

Lawmakers and media organizations are pressing for live television coverage, or failing that, live audio, in a case that will determine whether the government can force people to obtain insurance. The length of the arguments has few precedents in modern court history, and the case will be the court’s highest profile since the battle between George W. Bush and Al Gore in the 2000 presidential election.

“This is the focusing event and this puts more pressure on the court just because of the high level of interest,” said Lawrence Baum, a political science professor at Ohio State University in Columbus.

The court has given no indication it will relent on its ban of live broadcasts, and court observers said it’s unlikely. Even as Americans have come to expect live coverage of news events, the justices have made their marble courtroom a technology-free zone, barring spectators from using recording devices, telephones and cameras. The court releases its own audio recordings at the end of the week and has never allowed video, even on a delayed basis.

National Interest

Justices are considering requests from a dozen lawmakers and more than 30 media organizations, including Bloomberg News, seeking live coverage. They say that there’s a strong national interest in watching live arguments over an issue that touches everyone and affects the economy and presidential election.

Arguments over the health-care law should be broadcast live because the 2010 measure is “the most sweeping thing that’s passed Congress since Medicaid, Social Security and civil rights,” said Senator Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee.

“It will take the mystery out of the court system and help educate people about the judicial branch like they’re educated about Congress now that Congress is televised,” Grassley said in an interview.

There’s no established procedure for how the court would decide whether to allow live broadcasts. All nine justices probably will make the decision behind closed doors, said Richard Davis, a political science professor at Brigham Young University in Provo, Utah and author of “Justices and Journalists: The U.S. Supreme Court and the Media.”

TV Concerns

If there’s not unanimous agreement, the court probably would defer to those members who object, said Barbara Perry, a Supreme Court scholar and professor at the University of Virginia in Charlottesville.

Chief Justice John Roberts said at his 2005 Senate confirmation hearing that he wanted to listen to his colleagues’ views on cameras before taking a position. He didn’t give his position on live audio. A year later, he said at a judicial conference that some of his colleagues had concerns over television coverage and its affect on the court as an “institution.”

“We’re going to be very careful before we do anything that we think might have an adverse impact,” Roberts said at the judicial conference in Huntington Beach, California.

Justice David Souter, who retired in 2009, said at a 1996 House hearing: “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Legal Entertainment

Other justices to raise concern about cameras include Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Kennedy and Thomas said at a House hearing in 2007 that they feared cameras would change the dynamic among the justices and strip them of their anonymity.

“There’s something sick about making entertainment about real people’s legal problems,” Scalia said in a 2005 interview with CNBC. “I don’t like it in the lower courts and I don’t particularly like it in the Supreme Court.”

Courts around the country have gradually become more open over the years. All 50 states have let television cameras in at least some court proceedings, according to a state-by-state breakdown on the Radio Television Digital News Association’s website. Cameras are allowed in two federal appeals courts, and, on an experimental basis, in 14 trial courts.

C-SPAN, which decades ago began live television coverage of Congress after overcoming lawmakers’ opposition, is among those pressing justices for live video.

The Supreme Court is more likely to allow live audio than live television coverage, said Davis, the Brigham Young professor. Still, he predicted the justices wouldn’t allow either option, saying they prefer to work out of the spotlight.

Mocking and Ridicule

“In personal terms, it means their faces and their voices will be out here much more than they are now,” Davis said. “They’re afraid the anonymity they have will be lost. They’re afraid those clips will appear on the Daily Show with Jon Stewart or the Colbert Report or maybe show up on the Letterman show and they’ll be mocked, ridiculed or derided.”

Grassley is pushing legislation requiring the court to allow cameras unless a majority of justices conclude that the coverage would violate a party’s rights to due process. Similar measures haven’t advanced in Congress in previous years.

A law requiring the Supreme Court to televise its proceedings “is likely to raise a significant constitutional issue,” said Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit at a Senate hearing on the bill in December.

2000 Election

The Supreme Court began audio recording oral arguments in 1955, and made a practice of not releasing tapes until the beginning of the subsequent nine-month term. Justices made exceptions.

In 2000, when the court heard arguments in the presidential election dispute over vote counting in Florida, justices released an audio recording as soon as the session ended. The court also released same-day audio in more than 20 other high- profile cases in subsequent years.

In 2010, the court began posting audio on its website at the end of weeks when it hears arguments. Since then, the justices haven’t done any same-day audio releases to avoid being in the “awkward position of deciding which cases are of high public interest,” said Sonja West, a law professor at the University of Georgia in Athens who clerked for retired Justice John Paul Stevens.

States’ Challenge

Justices will hear arguments in the health-care case -- which pits the Obama administration against 26 states -- from March 26 to March 28, an unusual series. Justices generally hear arguments for a single hour in each case.

The court will consider whether Congress overstepped its authority by requiring Americans to acquire health insurance or pay a penalty. Republican presidential candidates repeatedly have criticized the measure and demanded its repeal. However the court rules during the presidential contest underway, it will become a central issue of the 2012 campaign.

Still, even with the ramifications of the health-care case, the court probably won’t want to go beyond its precedent of releasing same-day audio, said Jerry Goldman, a professor at the Chicago-Kent College of Law and director of the Oyez Project, a multimedia archive devoted to the Supreme Court.

“If it worked you might as well do it again -- I think that’s how the thinking would go,” Goldman said

--With assistance from Greg Stohr in Washington. Editors: Justin Blum, Mark Silva

To contact the reporter on this story: Seth Stern in Washington at sstern14@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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