Bench Memos

Ken Starr’s Flawed Case for Cameras in the Supreme Court

In a New York Times op-ed, Kenneth W. Starr (now president of Baylor University) makes the case for televising Supreme Court proceedings.

Unfortunately, Starr does not acknowledge, much less address, a serious internal tension in his argument: On the one hand, Starr regards video recordings as qualitatively different from the audio recordings and argument transcripts that the Court already makes available. Yet on the other hand, he asserts that the fear that televising proceedings would have negative consequences “seems groundless in light of the already available sound recordings from these sessions.”

But if video recordings are indeed qualitatively different from audio recordings and transcripts—if, as I put it in my case last year against televising Supreme Court proceedings, “[b]ecause of the emotional power of images, cameras, far more than microphones, transform the behavior of those who know they are being recorded”—then Starr has no answer to the concerns I spelled out:

In particular, cameras at oral argument and at sessions in which rulings are announced would encourage and reward political grandstanding by the justices (as well as by counsel and protesters in the courtroom). Whether or not the justices actually succumbed to the temptation to play to the national viewing audience — and what reason is there to think that, sooner or later, they wouldn’t? — their colleagues would often suspect they had.

The court would become more politicized, and the resulting resentment and distrust among the justices would disserve the ideal of reasoned deliberation — an ideal, to be sure, that is often not realized but that is at least still professed and pursued.