Early in 2024, the U.S. Supreme Court will hear oral arguments concerning some of the most historic, consequential cases — politically and legally— in our nation’s history, including Colorado’s decision to exclude Donald Trump from this year’s presidential ballots. The court will also hear cases concerning further restricting access to reproductive health care, the role and authorities of federal agencies, and the regulation of social media. And, not to mention, the court may hear Donald Trump’s claim that a president is totally immune from any criminal accountability.
Sitting in the sedate, marble pillared courtroom, the justices will have a compact audience— approximately 400 tightly seated spectators, mostly members of the Supreme Court Bar, guests of the court, and a press corps of print reporters, along with a few members of the public who waited in line outside overnight.
An audio recording will be made of the proceeding— the probing, sometimes contentious questions and comments by the justices, and efforts by counsel to respond— but no one outside the courtroom will ever see anything of it.
No real time broadcast, no visual record, no video. Not a single camera.
Closing the courtroom to all cameras seems incredible at a time when almost everything of any note— and a lot of no note— is visible or recorded. And for Supreme Court arguments, this visual record is of more than passing importance or curiosity. It is supremely significant— not just for now, but for history.
Anyone who’s argued in a courtroom knows that the gestures and raised eyebrows, smiles and frowns, movements like tilting back and staring at the ceiling, and more, are often as loud as statements. They are frequently as important as content or tone of voice.
Having argued four cases in the Supreme Court, and many more in lower courts, I’ve found that reading the bench is crucial to understanding the justices— a view shared virtually universally by Supreme Court advocates.
Yet, federal judges have barred any broadcast and visual recordings— not only in the nation’s highest court, but all federal courts—for reasons that are outdated or downright outlandish.
They cite the fear of distracting theatrics by counsel—waving the bloody shirt, as it used to be known—when lawyers think they’re playing to a bigger audience. But appellate arguments involve no evidence or jury, and state courts long ago vanquished this objection when they found that few lawyers change their style or strategy simply because there are cameras. Their priority is winning the case, and cameras are now in most state courtrooms without the parade of imagined horrors.
Then there’s the apparent fear of public misunderstanding or misimpression, endangering judges’ public image. But the correct response to the public’s lack of trust, knowledge or understanding is more transparency—not less.
In light of this judicial resistance, a bipartisan legislative effort is underway to open the Supreme Court to cameras and visual recording. A bill I’ve worked on with Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) would mandate it—with safeguards to prevent abuses.
The justices could easily act on their own to enable real time broadcasts of the hearing—even if only selectively of the upcoming cases to start, with limits on the number of cameras and their placement to address any misgivings. At the very least, they could authorize visual recordings so the full picture is preserved for history.
A drumbeat of public demand could still persuade them that visibility and transparency are vital— not only to their own credibility but the viability of our democracy. Public cynicism and distrust are fought with sunlight— the disinfectant of openness and access that has always been one of our democracy’s saving strengths. As we approach the first quarter mark of the 21st century, the court should enter the 20th and permit cameras into its proceedings.
Richard Blumenthal is the senior senator from Connecticut. He served as Connecticut state attorney general from 1991-2011.