Courts, let the cameras in

Editor’s Note: Stephanie S. Abrutyn is senior vice president and chief counsel, litigation, for Home Box Office Inc. She served as a member of the New York State Bar Association Special Committee on Cameras in the Courtroom, which delivered its final report on March 31, 2001. The views expressed in this commentary are her own.

On February 3, US District Court Judge James Robart entered a temporary restraining order amounting to a nationwide injunction that blocked the executive order limiting immigration from seven Muslim-majority countries. Shortly thereafter, I received a link to a video of the oral argument, a rarity because few federal courts allow cameras.

Though many articles have been written about the order itself, most of them have focused on its impact rather than the legal issues it raised. And because there was no substantive written opinion when the injunction was entered, watching the oral argument was critical to understanding the case, as it was argued by both lawyers and decided by the judge.

As a lawyer who has been in many hearings, I was immediately struck by how thoughtful, informed and experienced Robart appeared, a conclusion I could have only reached because I could see the argument. Robart asked detailed and nuanced questions throughout the hearing, and when the government tried to distinguish a prior case, he recited facts and arguments from the states’ briefs.

I gained a deeper appreciation of the legal merits from watching the lawyers in action. The state of Washington’s attorney emphasized the impact on individuals who had already been in the United States, not those denied the right to come for the first time. This was an interesting strategic decision that suggested to me the state thought equal protection was a particularly strong argument. When it was the government’s turn, I discovered that a significant issue in the case was whether the states that were suing even had standing to file the lawsuit.

Although I might have gleaned parts of these arguments elsewhere, I, and all those who watched, gained a significant benefit from watching the court case play out in real time. And regardless of how one feels about the executive order or the decisions at both the trial and appellate levels, there is little doubt that being able to watch oral arguments serves a critical public benefit.

While the legal briefs lay out the way the parties would like the court to consider the issues, the oral argument is where the lawyers – and public – get a sense of how the court is thinking about the issues.

Every experienced litigator will tell you that the questions asked in oral argument rarely foreshadow how a court is going to rule, but they can reveal a great deal about which arguments the court finds most compelling and which legal theories the court is closely examining. Oral arguments also flesh out the parties’ positions. And in cases happening on a tight timetable, witnessing oral argument sometimes offers the only true window into the basis for the court’s decision.

Unfortunately, most federal courts do not allow cameras in the courtroom. Yet the United States Court of Appeals for the 9th Circuit does allow cameras so future arguments in that circuit will be fully accessible to every member of the public. But should the case be appealed to the US Supreme Court, the public will not have the same opportunity to see it. The final and most important step in this case, and the one that will have the most profound impact on the citizens of this country, will not come with the maximum level of public access. And it should.

Supreme Court justices have repeatedly expressed objections to cameras because they theorize that lawyers will perform for the cameras. However, as a practical matter, it is simple to install small, stationary cameras that are barely visible, and which focus only on the lawyer arguing and/or the judge.

As a lawyer who has been involved in a trial that was televised and has argued in front of an appellate court with cameras present, my own experience is that the lawyers focus on the judge, not the cameras. In other words, they care about winning their case, not making a name for themselves on television. Watching any one of the many arguments available online from the 9th Circuit and elsewhere confirms that experience further.

The justices also dislike cameras because they value their own anonymity. They fear cameras will lead to more people recognizing them when they go out in public and force them to change the way they have to live. But even a single camera focused on the lawyer, with the justices only being heard as they already are on the audio recordings, streamed in real time instead of released later, would still offer a great public benefit.

Over 15 years ago, the New York State Bar Association Special Committee on Cameras in the Courtroom concluded that televised court proceedings helped increase the public’s understanding of the legal system and ultimately served to foster public confidence in the court system and judicial decisions. Their conclusions still stand today – and perhaps take on more significance now that we live in a world where alternative facts color the public discourse, and the President of the United States publicly calls into question the actions of judges presiding over cases of national significance.

In this environment, it is critical for the public to be able to see and hear the workings of the third branch of government for themselves, and in real time. It is long past the day when Congress should mandate cameras in all federal courts, including the US Supreme Court.