This morning at Georgetown Law’s symposium in celebration of Justice Stevens, I had the good fortune–and great honor–of speaking with the Justice himself for a few minutes. Upon my introducing myself, I was surprised–and greatly honored–to learn that he was familiar with my work. So as I handed him a printed copy of my article recounting his final oral argument, he asked if it was the one he saw in the post the other day.
“The Post?” I asked. “I’ve written for the ABA Journal and Christian Science Monitor, but never the Washington Post.” [Note: This conversation has been reconstructed from my memory; the quotations are accurate portrayals of our discussion, but not of the exact words spoken.]
“No, I received something of yours in the post.”
He opened the envelope and looked at the first few sentences of the story.
“This is not the same one,” Justice Stevens said, as he thanked me for the new reading material. And whoever mailed the justice one of my columns, I thank you.
He then asked my opinion on cameras in the Court, perhaps implying that the article he had already seen was the one from June’s final day of the last term.
I told him that I am fully in favor of televised proceedings. He mentioned that there could be some adverse consequences. I responded that his former colleagues could be trusted to smack down any grandstanding lawyers, as they have always done.
“And what about the justices themselves?”
“The Daily Show can keep them in check,” I suggested. By his knowing laugh, I submit that the Justice agreed with me.
I had the feeling that Stevens trotted out the commonly voiced concerns about cameras in the Court not because he believed in them, but rather because he wanted to hear how easily a young Court watcher could swat them away. It is disappointing that the Court’s reluctance to televise its oral arguments stems from its lack of faith in the Bench and Bar to behave themselves in front of the cameras.
As the event began and the panelists began recounting their stories of Justice Stevens’s “humble, devastating, and kind” demeanor from the bench, as former Solicitor General Paul Clement aptly described it, I kept thinking how tragic it is that the vast majority of Americans never had a chance to see Justice Stevens in action.
At the end of each oral argument week, starting today, the Court is releasing the audio recordings of the week’s proceedings. These recordings invite listeners to listen for themselves to how the Court deals with the country’s thorniest legal issues. But as exciting as it is to hear Justice Kagan’s first question of her career, Justice Scalia do his best “Sh*t My Dad Says” impression with his various curmudgeonly comments, Justice Ginsburg re-upping her feminist cred, or Justice Alito unwinding his increasingly compelling hypotheticals, we are many years removed from the radio days of Justice Stevens’s youth.
For every argument that the justices will spin out of control and play to the cameras, there are forceful answers in return. First, some justices already play to the portion of the public that can attend, so what’s the damage if the rest of America sees their antics? The law should be engaging, not forbidding, and there’s much to be said for Chief Justice Roberts’s more relaxed, laugh-tracked regime, even if a few commentators here and there will take some hypotheticals out of context.
Second, televised proceedings will allow more Americans to know the names and faces of Supreme Court justices. As public servants who now undergo major media blitzes upon their nominations to the bench, the justices should not feel entitled to perpetual anonymity. And really, most Americans, though valuing the opportunity to watch the Court in action, will not commit themselves to C-Span three days a week so to better track the justices down in their Northern Virginia supermarkets.
Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen. Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions. These scenes cannot be conveyed over audio. From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.
Until that day arrives when we can watch the justices go about their business, however, today’s footage from their class photo session will have to suffice.
Let’s hope that these nine men and women, all of whom, like Justice Stevens, are or will be national treasures by the time their tenures have expired, will soon show enough faith in themselves and the public to finally put cameras in the Court.
This piece has been cross-posted at The CockleBur.