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After decades of impasse, a showdown appears to be forming between the U.S. Supreme Court and the U.S. House of Representatives over whether federal courts should provide “real time audio and visual access” to federal court proceedings.
U.S. Rep. Mike Quigley, D-IL, chairperson of the House Appropriations subcommittee that oversees the federal judiciary’s budget, sent a letter Monday to U.S. Supreme Court Chief Justice John G. Roberts, Jr requesting live-streaming of Court proceedings.
“As we enter the third decade of the twenty-first century, there remain neither practical nor principled barriers to allowing the public to view Supreme Court proceedings via the Internet … The right to open court must keep pace with the times.” writes Quigley.
Quigley’s request is significant given that the U.S. Constitution places the power of the purse firmly in Congress’s hands. Each year, the U.S. judiciary must go before Congress to request passage of its proposed budget. The judiciary is seeking a $7.6 billion budget for the 2020 fiscal year, a 4.9% increase over 2019.
Quigley’s letter comes at a difficult time for the Court.
House Majority Leader Chuck Schumer, D-NY, has been sharply critical of the Court’s decision to hear a challenge to a Louisiana state law requiring doctors who perform abortions to obtain admitting privileges at a hospital within 30 miles. Schumer said Justices Neil Gorsuch and Brett Kavanaugh, who were nominated by GOP President Donald Trump, will “pay the price” if they vote to restrict abortion rights. Schumer’s comments elicited rare public rebuke from Justice Roberts, who called them threatening and potentially dangerous.
State Courts Allow It
Quigley notes that almost every state supreme court now permits some form of video access, which many state supreme court justices say increases trust in the rule of law and is no more distracting than a podium or chair.
He writes that open access aligns with past comments made by Justice Roberts highlighting the importance of civic education, especially to counter rumors and false information spread “on a grand scale” by social media. Quigley writes that “better access to the Supreme Court’s proceedings could further this goal. Conversely, limiting access to the Supreme Court to those willing to travel to Washington to brave long lines (or pay someone to stand in line for them) runs contrary to the judiciary’s role in fostering civic education.”
‘Public’ (but not in the 21st Century Sense of the Word)
The Judicial Conference of the United States, the policy-making body for federal courts, restricts audio and visual coverage of federal trial courts to “preserve and protect the litigants’ right to a fair and impartial trial.” The Conference permits each of the regional 13 courts of appeal to decide for itself whether to permit cameras in appellate proceedings but only four allow such coverage and, for three, it is limited.
The Conference argues court proceedings are open in the sense that the public can go to the courthouse where a trial is taking place and watch the proceedings. Moreover, the Conference argues that documents are available without charge at federal courthouses through a public access terminal and can be retrieved for a fee over the internet from the court’s Public Access to Court Electronic Records (PACER) system.
As if telegraphing the importance of the issue, the Electronic Frontier Foundation (EFF) Monday urged the U.S. Court of Appeals for the Federal Circuit to allow the public to watch by video a hearing scheduled for April in a notorious case involving a lawsuit brought by an alleged patent troll, Uniloc, against Apple. Unilock has asked the Court to seal court documents about how it operates. EFF Attorney Alex Moss said publicly accessible live-streaming will ensure the public, including small businesses that often face patent claims, have information often is available only to select lawyers and their corporate clients.
