First-ever “clean live audio” bill — aimed at maintaining livestreaming in SCOTUS and circuits post-pandemic — introduced as amendment but fails

For the first time since 2011, the Senate Judiciary Committee passed two bills that would vastly improve public access to court proceedings at all levels of the federal judiciary. By a vote of 15-7, the panel approved S. 807, the Cameras in the Courtroom Act, which would require video recording of Supreme Court oral arguments and opinion announcements, and by a vote of 16-6, it passed S. 818, the Sunshine the Courtroom Act, which would permit judges at any level to authorize live or tape-delayed audio or video recordings of their courtroom’s proceedings.“

Whatever the fate of these bills, today is an apt reminder that Congress has broad authority to set institutional policies in our federal courts, even in the Supreme Court, from where they meet, what kind of cases they hear and, yes, whether they’re permitted to close their hearings to 99.9% of the public despite what modern technology affords,” FTC’s Gabe Roth said.

“The Committee’s continued interest in working to open up the historically opaque third branch, under both Democratic and Republican leadership, shows that transparency is a worthy goal that has no partisan bounds.”

Today’s meeting comes as transparency groups are raising concerns that the Supreme Court has not yet publicly ruled out backsliding to week’s-end argument audio releases once the justices return to the courtroom in the fall.

Responding to a request from Fix the Court, Sen. Cruz introduced an amendment to the “Cameras” bill that would require argument audio in the Supreme Court and all circuit courts be livestreamed. (Cruz called the bill “same-day audio” during today’s meeting, but his staff confirmed to FTC that the amendment, the text of which has yet to be posted online, called for live audio.) Though that amendment failed, 7-15, in large part due to the amendment’s late (5 p.m. yesterday) arrival, FTC expects the House to introduce a live audio bill in the fall for which bicameral support is likely.

The first Senate “Cameras” bill was introduced in 2000 and last passed Senate Judiciary in 2010. The first Senate “Sunshine” bill was introduced in 1999 and last passed Senate Judiciary in 2011.

Each time, the bills have been bipartisan and the list of cosponsors had included senior members of both parties. “The same lawmakers support nearly identical broadcast bills year after year only to have them stall. That’s why thinking outside the lens cap, and proposing legislation to make live audio an ongoing requirement, not merely a pandemic-based whim, was worth a try,” Roth added.

Around two-thirds of Americans have consistently supported live video and/or live audio in SCOTUS since FTC started polling the issue in 2014. One 2018 poll, though non-scientific, found 70 percent of judges back cameras in their courtrooms.

The Supreme Court and 91 of 94 district courts do not allow cameras. Fifteen district courts are currently participating in a two-year live audio pilot program that began this past February. Although, per Judicial Conference policy, circuit courts may offer live audio and/or video access for arguments, only two, the D.C. (live audio) and Ninth (live video) Circuits, typically offered such access for their arguments, until the pandemic hit, whereupon all 14 appeals courts livestreamed their hearings. Currently, only four of the 14, the Second and Federal Circuits, plus the D.C. and Ninth Circuits, have committed to livestreaming into the fall.

Late yesterday the Judicial Conference reupped its decades-old lobbying effort against the “Sunshine” bill, as they do whenever a broadcast bill is introduced. (They don’t oppose the “Cameras” bill since the Conference doesn’t set SCOTUS policy.) “That the Conference’s letter cited its own 2009 opposition — consider how much livestreaming technology has improved from the iPhone 3 era until now — tells you all you need to know,” Roth concluded.

Previous committee or unicameral considerations of judiciary broadcast bills:

Fact sheets:

– What courts are doing on broadcast right now: LINK
– Some really good quotes on broadcast access: LINK

Broadcast fans on the high court?

What Justice Breyer said in 2014 when asked whether SCOTUS could livestream argument audio: “[Put arguments] on the radio? I mean, the radio? Fine. They tried that in the D.C. Circuit. It didn’t hurt anything. Could we experiment with that? Maybe, but that’s not right in front of us” (emphasis ours). “Well, it is now,” added Roth, “as it has been for the last year.”

What then-Judge Barrett told Sen. Chuck Grassley last year during her Supreme Court confirmation hearing: “I would certainly keep an open mind about allowing cameras in the Supreme Court [if confirmed].” Of note, Barrett was on the panel for the Seventh Circuit’s first-ever video-recorded argument in 2018, which proceeded without incident.

Additional note:
Since 2004 the Supreme Court has permitted members of its Bar to sit in a “Lawyer Lounge” on the building’s main floor and listen to arguments live via wall-mounted speakers. We plebes still line up on First Street starting at 5 a.m. or earlier during non-COVID times