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“Cameras in the Courtroom” Sounds Nice. But It’s Audio (and Immediacy) We’re After

How many of you watched the Justice Gorsuch confirmation hearings last month? Like actually “watched” them? I’m guessing very few.

To the extent that you paid attention, chances are you turned on the TV or went to and listened as you went about your day. Your eyes were not fixed to your screens as the senators and the nominee parried.That’s not a bad thing; that’s how work works nowadays.

Countless desk jockeys among us spend much of our non-meeting weekdays with earbuds in, listening to music on Spotify or in their iTunes library. If I’m reading a law review article or a Supreme Court opinion, chances are I’m doing so while listening to Diana Ross or The Slants (for obvious reasons).

There was no video for the Trump v. Washington travel ban hearing on Feb. 7, yet thanks to the Ninth Circuit’s and CNN’s uninterrupted broadcasts of the audio, more than one million Americans listened in.

So it’s curious, then, that the bipartisan group of senators who last month introduced the Sunshine in the Courtroom Act, which would require video-recording of all federal appeals court hearings, and the Cameras in the Courtroom Act, which would require video for the Supreme Court, did not consider introducing a Live Audio in the Courtroom Act instead.

Yes, livestreamed video is where we want to end up. But at the moment, that’s not where the justices or their circuit court counterparts are, and frankly, it’s the lack of immediacy that’s more problematic from a newsgathering and an informed public perspective than the lack of images.

We know that the Supreme Court has the technology to livestream audio from its courtroom — they’ve done it all of once, for last November’s special session of the Supreme Court Bar honoring Justice Scalia. That the court does not even deign to release the audio of its hearings on the very day a case is argued, a practice referred to as “same-day audio,” which nearly every other federal appeals court in the country employs, is baffling — and is in dire need of a congressional push. (After Apr. 26, there are no SCOTUS arguments until Oct. 2, so that should be plenty of time to cobble together some bipartisan language.)

Thankfully, several circuit courts — there are 13 in total — are considering the move to live audio. Last month, the clerk of the Sixth Circuit told me she’s working with her IT staff to determine what a policy upgrade would entail. The Eighth Circuit recently noted that it will be placing the issue on the agenda of its next circuit-wide meeting. And clerks in the First, Fifth and Tenth Circuits all report they are raising the idea with their chief judges. That’s a promising start.

Lower courts look to the Supreme Court for how to apply precedent and decide cases, but the justices should also be setting the tone for how the judiciary conducts itself in terms of openness and accountability, not the other way around, as is the current practice.

So let us not be blinded by alliterative idioms.

“Cameras in the courtroom” sounds nice, but live audio is a more realistic and important goal at the moment.

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