This has been a busy week for policies governing the use of courtroom cameras.
- Senators Charles Grassley (R-IA) and Dick Durbin (D-IN) introduced S.643, which I have seen alternately referred to as the Cameras in the Courtroom Act of 2017 or the Sunshine in the Courtroom Act of 2017. The Act would require open proceedings in the United States Supreme Court to be televised. Similar legislation has already been introduced in the House. Variations of this Act have been introduced for many years, without success.
- Several media outlets declared this week “Sunshine Week,” leading to editorials calling for allowing cameras into both state and federal courtrooms.
- On its own volition, the Third Circuit Court of Appeals has started posting video of its oral arguments online. The always terrific Howard Bashman has the details in a new column for the Legal Intelligencer. The Third Circuit’s press release, which provides more context for its decision to make videos available, is here.
I spent much of my legal career thinking of courts as part of the environment in which others operate. Individuals, businesses, and government agencies looked to the courts to settle specific disputes and provide guidance about the law. Courts therefore influence society every day, both directly and indirectly.
What I failed to fully appreciate is that society strongly influences courts as well. Other government branches, the legal profession, the media, and the public at large affect the way courts operate. The influence is usually not front page news, although it can be when the President publicly challenges a court decision (as the last two presidents have done), or when special interest groups threaten to vote state judges out of office. Frequently the influence is less newsworthy but more pronounced: a new statute that floods the courts with litigation, or delay in filling judicial vacancies, or budget crises that shutter courthouse doors and slow the wheels of justice.
Over the years, I have researched and taught on a wide range of topics related to the judiciary and the court system: judicial selection and evaluation, independence and accountability, judicial decision making, litigation case management, public perceptions of fairness and legitimacy, judicial reputation, bench presence, the exercise of judicial discretion, and ethics. Recently I have come to see that they are all parts of the same elephant. Courts are complex organizations, with challenging missions and multiple audiences. This blog is an effort to track more systematically the ways in which courts interact with their environments.
Courts need resources from the external environment to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
“Interdependence is the reason why nothing comes out quite the way one wants it to.” — Jeffrey Pfeffer and Gerald Salancik
It is a common refrain that the judiciary should be independent: judicial decisions should be fair, impartial, and not influenced by other branches of government or powerful interests. But even courts that are independent in their legal decision making are not fully free from the influences of their environment. Courts are resource-dependent: they rely on legislatures for funding, staffing, and jurisdictional authority. They rely on attorneys for professional support and expertise. They rely on prosecutors and the public to produce a steady stream of cases for the courts to resolve. And they rely on all these groups for their most important resource: legitimacy.
In this sense, courts are more accurately described as interdependent. They need resources from the external environment (organizations and people outside the court system) to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
This fact is both obvious and underappreciated. Interdependence affects court structure, administration, organization, strategy, behavior, and external relationships. The primary purpose of this blog is to highlight instances of court interdependence worldwide. And we will try to test out some theories and refine our conclusions as we go along.