Don't look for cameras in the Supreme Court anytime soon, although a slow and steady move to real-time audio seems at least a possibility.
The problem would not be in a CSPAN like gavel-to-gavel chronicling of oral arguments--though the judges don't think there would be a great interest in that format--but in the impossibility of preventing that from being cut up by others into sound bites that would "misrepresent" what the court was really doing.
That's according to three of the nine justices, who were interviewed for a National Constitution Center event last week by Meet the Press moderator Tim Russert.
When asked by Russert whether live audio or video might not help Americans better understand the process.
Justice Antonin Scalia spoke at some length about his reasons for supporting live audio and TV in principle, but not in practice.
" I wouldn't mind having the proceedings of the court not just audiotaped but televised," he said, then seemed to take it immediately away with a big qualifies: "If I thought that it would only go out on a channel that everybody would watch gavel-to-gavel.
"But if you send it out on CSPAN," warned Scalia (CSPAN was covering the event), "what will happen is for every one person who sees it on CSPAN gavel to gavel so that they can really understand what the court is about, what the whole process is, 10 thousand will see 15-second takeouts on the network news, which I guarantee you will be uncharacteristic of what the court does. So I have come to the conclusion that it will misinform the public, rather than inform the public, to have our proceedings televised."
Scalia also argued that the cases the media focus on are the exception rather than the rule, which would again misrepresent what the court does. For every one case about abortion or homosexual sodomy or the right to die, issues that he says don't really take a lawyer to decide, there are the 40 about tax law or other arcane material that only a lawyer could love.
"The networks want want man bites dog," stories, argued Scalia. "They don't want people to watch what the court does over a course of a whole hour of argument."
Justice Sandra Day O'Connor agreed, saying: "Few people would want to watch gavel-to-gavel coverage, and that the high-profile cases are not the rule. But unlike Scalia, who seemed enthusiastic, but wary, of TV, O'Connor was relatively dismissive. "I'm not particularly interested in the television prices right now," she said, adding that the release of audiotapes after the arguments, which they already do--expedited for the high-interest cases--seemed to already be working "pretty well."
Suggesting a thousand words might be preferable to that picture after all, Justice Stephen Breyer saw even gavel-to-gavel video as potentially problematic: "In an appellate court, and particularly our court, " he said, "there two things going on at once.
"There are human beings who the viewer and you and I can see, but what we decide will not just affect those lawyers or their human clients, whom you [speaking to Russert] will interview and talk to, but they will affect ,through the rule of law that you create, millions of people. And those millions of people are not in the courtroom and those millions of people can't be seen by the viewer.
"The only way that the viewer can understand them is through an intellectual process of understanding the rule of law.
"That's why sometimes its very hard to communicate with a picture what's going on in a courtroom, because human beings relate to the human beings they see, which is a a very good characteristic in human beings, but in this instance can be quite misleading."
Still Breyer was not taking a Luddite approach to all technology.
Breyer advocated a "take it slow" approach, describing the court as a sacred trust the current judges have inherited: "Each of us is incredibly cautious about any change that might advertently or inadvertently or without fault, make a negative difference to that institution. Therefore, when you say, start with the audio, and then see how it goes and see what happens and learn from experience and be very, very cautious. I think that would reflect my view."
O'Connor seconded that with an apt analogy. "Even the symbols of the court are moving slowly," she told Russert. "For instance, the bases of all the lanterns in the courtyard [of the Supreme Court] are tortoises because they move slowly and that's what we do." But they're "surefooted," added Scalia, adding "You never saw a tortoise stumble, did you?"