The Supreme Court is (in)famously hesitant to join the age of modern technology. They began recording audio of their oral arguments in 1955, two or three decades after the widespread use of radio. Some of their justices were still using typewriters in 2004. Now the big issue is their refusal to film video of their oral arguments, 37 years after C-SPAN began broadcasting Congress on television.

A 1932 photo of Supreme Court proceedings by Erich Salomon, via Slate.

S. 780 and H.R. 94, the Cameras in the Courtroom Act, would “permit the televising of Supreme Court proceedings.” It’s been introduced by Sen. Richard Durbin (D-IL) and Rep. Gerry Connolly (D-VA11). The co-sponsors have largely been Democrats, but one Republican in each chamber has signed on — especially important considering the Senate Republican: Judiciary Committee Chair Chuck Grassley (R-IA). (Grassley has also introduced a similar bill with S. 783, the Sunshine in the Courtroom Act.)

Support

“It’s time to bring transparency into the halls of the Supreme Court. Though people may disagree on the outcomes of Court rulings, I think we can all agree that the American people deserve the opportunity to see the public proceedings of the nation’s highest court,” said Durbin. “As the Supreme Court considers cases on healthcare, marriage equality, and many other critical issues that impact Americans’ daily lives, bringing cameras into the courtroom would only benefit the judicial process.”

“The Supreme Court is not some mystical, druidic priesthood that periodically deigns to review constitutional issues and hand down their wisdom from on high,” said Connolly. “It is a human institution, a co-equal branch of government, and it is long overdue that the American public has better access to their highest court.”

Indeed, similar bills have previously been approved by the Senate Judiciary Committee twice: by 11–7 in 2012 under Republican control and 13–6 in 2010 under Democratic control. However, those bills did not advance beyond that point.

Opposition

The late Supreme Court Justice Antonin Scalia was one of the most vocal opponents to cameras in the courtroom. Asked in 2015 if he had changed his mind about anything since joining the court in 1986, Scalia initially replied, “Oh, Lord” to audience laughter. Then he added, “But I have — it’s an easy answer. When I first came on the Court, I was in favor of the televising of the Court proceedings. Now I have since changed my view on that, and I very much would oppose televising the Court proceedings.” Scalia says arguments would lead to soundbites on the news, which the Court has remained largely immune from, and that the Court has full disclosure with their opinions and dissents anyway.

New Yorker legal analyst Jeffrey Toobin explained the historical roots of opposition, in particular as a result of what remains arguably the most famous legal case in modern American history — even more than any Supreme Court case: the O.J. Simpson trial of 1994.

“Judge Lance Ito was widely perceived to have lost control of the Simpson proceedings, at least in part because of the presence of cameras; the spectacle led to a backlash against cameras that has endured,” Toobin wrote. “Federal courts still bar cameras in almost all circumstances, and many states, like New York, which had experimented with cameras, pulled back after the Simpson case. In California, the rule still leaves cameras up to the discretion of the trial judge, but most judges in post-Simpson high-profile cases, hoping to avoid the fate of Ito, have barred cameras.”

Developments

In 2014 activists snuck in a hidden camera and filmed oral arguments for the case McClutcheon v. FEC, uploading the footage to YouTube, in what is believed to be the first visuals of the Supreme Court in session since some black and white photographs from 1937.

Both bills have been referred to the Senate and House Judiciary Committees, respectively, but have yet to come up for a vote there. It is not immediately apparent why Sen. Grassley, who runs the Senate Judiciary Committee, has not scheduled a committee vote for a bill that he vocally supports.