Can Congress force cameras into the Supreme Court courtroom?
Two Congressmen have introduced a bill to require the United States Supreme Court to allow cameras to record the Court’s proceedings under certain circumstances. So does Congress have the power to compel the Justices to comply?
The answer is “maybe.” The lifting of a camera ban in the Supreme Court could be done by statute, if such a law were ever passed, says the Congressional Research Service. But as with any legal case, the Supreme Court could have something to say on the matter if lawsuits were filed objecting to the move.
The argument over cameras in federal courts isn’t new. In 1937, a member of Congress first proposed a statute to allow cameras in federal district courtrooms after amateur photographers snuck cameras into a public area and took two snapshots of the Supreme Court. It provided for “the recording of certain proceedings in the district courts of the United States by motion pictures and synchronized sound-recording equipment and for the reproduction of such proceedings by talking pictures in the circuit courts of appeals of the United States and in the Supreme Court of the United States upon the review of any such case.”
The Supreme Court later agreed to follow the Federal Rules of Criminal Procedure. They were amended in 1946 to add a provision about cameras called Rule 53: “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
Under the Rules Enabling Act passed by Congress, the Supreme Court proposes these rules to Congress for approval. The Congressional Research Service says that, “as Rule 53 indicates, the prohibition on cameras could be lifted if the Supreme Court and Judicial Conference amend the Federal Rules of Criminal Procedure, or if Congress passes a statute that allows or requires cameras in the courtroom.”
In the new Congress that started in Washington this month, Representatives Gerry Connolly, a Democrat, and Ted Poe, a Republican, introduced the latest version of the Cameras in the Court Act. "The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court," the bill reads.
Previous efforts to get such a bill signed into law have failed. About decade ago, the late Arlen Specter sponsored a similar bill and he asked Supreme Court Justice Anthony Kennedy about it at a congressional public hearing. “A majority of my court feels very strongly . . . that televising our proceedings would change our collegial dynamic. We hope that the respect that separation of powers and checks and balances implies would persuade you to accept our judgment in this regard,” Kennedy told Specter.
The current Supreme Court rules allow cameras in public spaces building, but not within the actual courtroom. Also barred from the courtroom are cell phones and audio devices.
The debate over cameras in the Supreme Court has been lively and frequent over the past decade. Congressional advocates for cameras include Richard Durbin, Patrick Leahy, and Chuck Grassley.
The Justices themselves have been either guarded in their public opinions or in opposition. The late Justice Antonin Scalia openly opposed cameras in his Supreme Court. In 2015, Justice Stephen Breyer offered conflicted remarks in an MSNBC interview. “Part of me wishes [cameras] were in the courtroom because I think people would find this a very educational experience. Part of me is slightly afraid that it would be misleading,” he said.
As a custom, the Supreme Court has been slow to adapt to technology. The Supreme Court’s audio recordings date back to October 1955. But the recordings were only available to the Justices, clerks and researchers, with usage restrictions, until 1993. After a dispute with a political scientist who published select audio records, the Court allowed audio to be available to the general public without restrictions. It wasn’t until 2010 that audio of Supreme Court arguments was made available during the current term, but now audio is available on a weekly delayed basis.
Nationally, all 50 state supreme courts allow cameras under certain circumstances, and many lower courts within states allow cameras. But as of last June, cameras were allowed in just two federal circuit courts and 14 federal district courts under controlled circumstances.
Scott Bomboy is the editor in chief of the National Constitution Center.