Amidst the unprecedented health and safety concerns posed by the COVID-19 pandemic, the Supreme Court of the United States of America closed its doors to the public until further notice. The Supreme Court's closure is the first disease-related shuttering in over a century, with severely adverse consequences for the right of public access to courtrooms; a right that has remained deeply ingrained in the American constitutional experience and has assumed an even greater importance in times of crisis. The Supreme Court had previously postponed its scheduled arguments for the month of October in 1918 in response to the Spanish Flu epidemic. Now, in the year 2020, the Supreme Court enjoys an advantage crucial to ensuring unrestricted public access, that the justices of 1918 did not – modern technology.
On May 4 2020, the Supreme Court departed from its longstanding 230 year-old tradition on two particularly significant counts. It not only heard arguments by conference call but also allowed the public to listen-in live – a historic achievement for a camera-shy court that has regularly declined even to provide audio on the same day as arguments in major cases. The wheels of justice are infamous for turning ever so slowly. As far back as the 1990s, Frederic I. Lederer, a widely cited author on judicial reform, had predicted that, "[t]he sea change we are now undergoing will bring an increasing degree of virtual-ism to our courtrooms and trials." Justice Kennedy echoed a similar optimism when he described the broadcast of Supreme Court's proceedings as an "inevitable" reality of the modern courtroom. Yet it took the principal federal judicial organ of the country several decades and a pandemic to prompt the prophesied change and to begin to realize the expanded scope of a right as basic as the right of public access to courtrooms in the 21st century.
However, as the Supreme Court shut its physical doors all the way through, it left virtual ones only slightly ajar. Whereas before one could walk right through those doors as a matter of right, now, one can only hope to listen in. Consequentially, depriving the public of the cognitive benefits that flow out of witnessing court proceedings. Moreover, studies suggest that public distrust in the judiciary surges during an emergency as courtrooms remain shut to an in-person audience and the people are barred from witnessing crucial court proceedings. Assured public access to courtrooms must be upheld now, more than ever, in order to ensure judicial transparency and restore public trust. But how exactly does an institution which is public on paper, remain public in spirit when the emergency measures in Washington D.C. would require the people to commit a jail-able criminal offence in order to attend Supreme Court proceedings?
The answer – digital transparency. Recently, the Judicial Conference decided to temporarily provide the public and the media with audio-visual access to all 13 federal courts of appeals, pursuant to paragraphs (3), (4) and (5) of Section 15002(b) of the newly enacted Coronavirus Aid, Relief and Economic Security Act. However, the U.S. Supreme Court is not bound by the orders of the Judicial Conference. Certainly, access to justice can neither be delayed nor suspended until the COVID-19 pandemic ceases to be one. Therefore, the supreme arbiters of justice must adapt swiftly to allow for greater public access. The predicament that faces them is two-fold. Firstly, while adopting live audio-streaming is a step in the right direction, the likelihood of the practice enduring beyond the times of crisis appears grim. Secondly, given the accessibility of audio-visual technology in 21st century America and its viability in the current scenario, there exists no justification for denying public access to live video-streaming of court proceedings. As the Supreme Court plays it by the ear, it is imperative for the judiciary to pivot towards a change that endures even after the all-clear is sounded, and to do so wholeheartedly. Unfortunately, the past judicial response has been anything but.
Of The First, Sixth and Fourteenth: A Brief Judicial History of Public Access to Courtrooms
The First Amendment to the American Constitution prohibits the complete closure of courtrooms to the public. The Fourteenth extends this principle to states and clearly gives the press and the public a right of access to trials, civil as well as criminal. And lastly, the Sixth Amendment affords the defendant the right to a public trial. However, there exist a litany of cases which demonstrate that the mere enumeration of rights in the Constitution does not guarantee their effective implementation.
In 1806, President Thomas Jefferson brought charges of treason against his former Vice President Aaron Burr in the well-known Aaron Burr Treason Trial. The public interest in the case was so overwhelming that Chief Justice Marshall opened the trial to the public in the most innovative way possible at the time, by moving it into the Virginia Hall of Delegates to accommodate all in attendance. The decision reaffirmed that the Constitution was indeed a fluid document with the ability to adapt effectively to a changing society. Later, through a series of decisions, the judicial enthusiasm towards opening-up of the courtroom waned and in the 20th century was diluted beyond recognition by the adoption of Rule 53 of the Federal Rules of Criminal Procedure, 1946. Rule 53 along with American Bar Association's Canon 35, firmly declared that cameras and microphones should be banned from courtrooms because they "degrade the court and create misconceptions with respect thereto". Reflecting a sentiment akin to the aforementioned provisions in Sheppard v. Maxwell (1966) and more notably in Estes v. Texas (1965), a divided U.S. Supreme Court turned the verdict and opined that the "carnival atmosphere" created by cameras in the courtroom was so pervasive that it denied parties the due process of law guaranteed by the Constitution.
Justice Louis Brandeis famously described states as "laboratories of democracy". And rightly so, since despite the judgements, the spirit of open access to justice was kept alive through state experimentation with televising trials throughout the 70s and 80s. In Richmond Newspapers, Inc. v. Virginia (1980), the U.S. Supreme Court affirmed that, "open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion". This was the first significant indication of a marked shift in judicial attitude. The Estes misstep was finally remedied in Chandler v. Florida (1981), wherein, the Supreme Court held decisively that broadcast coverage of trials does not amount to a denial of due process. The ruling set in motion a period of renaissance in courtroom transparency across all states. American Bar Association's Canon 35 was revised to allow the broadcast of trials and since then no verdict has been overturned on the basis of prejudice caused by television.
Despite the rapid development in the culture of openness at the level of state courts, the federal judiciary continued to draw criticism for its opaqueness. Although, the Judicial Conference provided some intermittent media access to courtrooms through various pilot runs during the late 90s, these involved a limited number of courts and did not result in a transition to transparency. Courtesy of the pandemic, the time for permanent change has come and the U.S. Supreme Court, being the highest federal signaling authority, must strike while the iron is hot.
The Current Judicial Response: Challenging Supreme Exceptionalism
The Supreme Court remains to be the most powerful yet the least transparent institution in the country. It has possessed the technology to enable virtualized public access to courtrooms for quite some time now, but not the will. All this while the Supreme Court has pled judicial exceptionalism in disallowing audio/video recorders in the courtroom. It has done so at the cost of judicial uniformity in providing public access. Presently, there exists gross inconsistency across the federal courts in granting public access. While the U.S. Court of Appeals for the 9th Circuit has regularly live-streamed its proceedings since 2013, the U.S. Court of Appeals for the District of Columbia Circuit, located just down the street from the U.S. Supreme Court, has only recently started live-streaming its argument sessions in 2018. Several federal courts still routinely deny permission to live-stream court proceedings. The U.S. Supreme Court enjoys pre-eminence in federal judicial system. The Supreme Court's continuance of the practice of live audio-streaming will encourage all 13 circuits to remedy this fatal inconsistency.
To hold, that the public and the media may only utilize those tools which were available over 200 years ago, instead of integrating such technology into the courtrooms which would enable dissemination of invaluable civic education to the public by facilitating virtual access, is catastrophic judicial oversight. The U.S. Supreme Court makes decisions for 309 million people who are not there when those decisions are made. It is therefore not unreasonable for the American people to have the opportunity to witness the arguments and decisions that will shape the American society for years to come. Extensive bi-partisan surveys conducted just days before the Supreme Court's May arguments, polled 67% in favor of allowing cameras in the courtroom and 70% in favor of continuing with live-audio once things normalize. Nearly 2 million people tuned in over the course of the next 2 weeks as the Supreme Court began live-streaming its oral arguments on May 4. Nearly 2 million more reasons to extend the live audio-streaming of court proceedings beyond its scheduled sunset.
Long lines that form days prior to the scheduled oral arguments are a hallmark of high-profile Supreme Court hearings. More than 99% of the American population does not live in Washington D.C., and, thus their opportunity to visit the Court is severely limited. For the vast majority of the American population, to witness a Supreme Court proceeding is a once-in-a-lifetime experience. This has to change. The Supreme Court has only 50 highly coveted seats reserved for the members of the public. This miniscule number lends an unfair characterization to the word "public". Indubitably, live-streaming of court proceedings will allow for public access in the true sense of the word by "virtually" expanding courtroom beyond its four walls.
Video live-streaming of court proceedings is a natural 21st century extension of the principle of public access. However, the objections to it have remained unchanged for the last 300 years. Justices have often cited the dangers of grandstanding by lawyers and the misconstruction of selective video snippets shown by the media. The concerns of judicial decorum that prompted the initial ban on electronic coverage of courtroom proceedings no longer exist. Modern cameras allow for unobtrusive gavel-to-gavel coverage of the proceedings, defeating the fears of selective coverage of court proceedings. Furthermore, several state court judges have publicly debunked the concerns against grandstanding and have characterised their experience as "extremely positive". Moreover, the Chief Justices of many nations, including America's northern neighbour Canada, have reaffirmed that live-streaming is healthy for a fair and transparent judiciary. None of the evils often cited as obstacles to live-streaming surfaced during the Supreme Court's two weeks of oral arguments in May. In fact, the arguments broke new ground by allowing for systematic posing of questions to lawyers in the order of seniority of judges and enhanced the overall quality of oral arguments by enabling greater participation of judges and lawyers.
The present uncertainty that overshadows the transparency of the American judicial system is likely to continue for the foreseeable future. It is the court's affirmative burden to ensure unfettered access to court proceedings. Senators have written letters and Congressmen have introduced the Twenty-first Century Courts Bill to remind the Supreme Court of its duty and ability to continue with the live-streaming of court proceedings even after the pandemic is over. The judges of the Supreme Court are quite literally "Justice" – they must rise to the occasion to ensure that justice is truly served.
Views are personal only.
(Author is a student of law at National Law University, Lucknow, India. Presently, he is working as the External Relations Associate at the Office of the United Nations High Commissioner for Refugees in India at New Delhi)