The election contest in Florida is the television story of the century (so far). We've watched days of courtroom proceedings and canvassing-board meetings with members holding ballots to the light to view dimpled or hanging chads.
But, amazingly, the United States Supreme Court refuses to allow TV cameras into its hallowed courtroom. Unlike the Florida Supreme Court, which permitted live coverage to an international audience, the highest court in the land convened before just 80 members of the public.
This has been a TV story all along, and for good reason. It will ultimately produce the 43rd president of the United States. The American public, polarized in post-election limbo, needs to monitor the contest to perceive that it is fair.
So why the TV blackout in the Supreme Court? Factors that occasionally justify barring cameras from lower-court proceedings do not apply. There are no lay witnesses or jurors who might find the camera intimidating. There is no danger that TV would deny the parties a fair trial. Televising the hearings in Florida's courts did not harm the process one iota. There is but one reason for the blackout in the US Supreme Court: The justices simply do not want to let a TV audience see them work.
They do offer excuses. Chief Justice William Rehnquist told a 1992 judges conference that if the justices didn't look good on camera, "it would lessen to a certain extent some of the mystique and moral authority" of the court. Say what? The moral authority of this invisible court has been questioned by many; they fear it has been infused with the partisanship of this drama. Hearing arguments under a TV blackout does nothing to dispel those concerns.
Justice Ruth Bader Ginsburg has said she generally favors camera coverage, provided it is gavel to gavel. Perhaps she worries that news media will excise and replay snippets from hearings out of context and distort the content. But that already happens with the audiotape replay and print journalism. Justice Ginsburg expressed another concern: "The problem is the dullness of most [Supreme] Court proceedings." Justice Antonin Scalia once told an audience sanctimoniously that "law is a specialized field, fully comprehensible only to the expert."
So how do these justices explain the intense public interest in the arguments in Bush v. Gore? Millions sat glued to their TV sets when the Florida Supreme Court grappled with technical legal issues of statutory construction. Indeed, when the high court held hearings on whether the Florida Supreme Court violated federal law or the US Constitution, public interest was overwhelming. People began camping out on Saturday before the court's Monday hearing, hoping to get a seat.
A primary reason for the blackout involves the justices' desire to maintain personal privacy. The justices love their public anonymity, in large part because of the TV blackout. The late Justice Harry Blackmun, author of the court's majority opinion in Roe v. Wade, once passed a group of anti-abortion protesters during his noontime stroll. Unrecognized, the justice looked on as they railed against his most famous decision. Justice David Souter - a man who loves his privacy - was likely motivated by that factor when he said in 1996: "The day you see a camera come into our courtroom, it's going to roll over my dead body."
The desire of our nation's top jurists to protect their privacy is trumped by the overwhelming right of the people to watch them hear a landmark case. The American public owns the process of choosing its president, and is entitled to see and understand every step of the process.
The world listened to audiotapes released by the Supreme Court immediately after its hearing, and should have been watching when the court heard arguments that may lead it to end the election contest.
Justice Sandra Day O'Connor said a few years ago: "Eventually we will probably have television. But it probably won't be for a good while." How long a while that will be is anyone's guess. Hopefully we, and Justice Souter, will live to see the day.
Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego and a commentator for Court TV. She is co-author of 'Cameras in the Courtroom: Television and the Pursuit of Justice' (McFarland, 1998).
(c) Copyright 2000. The Christian Science Publishing Society