Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

The Virtues of Remote Access to the Supreme Court

A guest post by Lawrence Friedman

Writing in The Hill, Jonathan Turley argues that, in the midst of the COVID-19 pandemic, government should not stop working simply because members of Congress or the U.S. Supreme Court cannot meet in person. He suggests, for example, that the Court could hold televised arguments with only counsel and the justices present. This is in contrast to Chief Justice John Roberts’s decision “to suspend all further arguments,” despite a docket of cases that Turley rightly characterizes as of “enormous national importance, from health care to gun rights to immigration.” As he puts it, “because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.”

Of course, there is nothing in the Constitution that prevents the Supreme Court from operating virtually or televising oral arguments—the framers could not have imagined modern communications technology. Rather, the obstacle today remains the justices themselves. As retired Justice Anthony Kennedy once observed, there is a concern that the justices would not be able to refrain from “saying something for a sound bite.”

But the justices are not the only ones worried about the effect of remote access to oral arguments. Responding to Turley, Jonathan Grove contends that, because “the judicial branch is the only branch for which rigorous argument is still the business of the day,” cameras would threaten to turn the Court’s work into “source material for our watered-down ‘infotainment’ industry and angry Twitter partisans.” Further, he insists that the Court’s work is not essential in a time of crisis: “With some notable exceptions, meeting the immediate needs of citizens is a job that falls to state and local governments and, to a lesser extent, the executive branch. … Our constitutional system will not collapse if [the legislative and judicial] branches end up having to take extra time off.”

The problem with Grove’s argument, at least as it applies to the Court, is that, while we expect and hope the resolution of the disputes before the justices will be appropriately deliberative and thoughtful, that does not mean the work is less urgent. As of this writing, we are awaiting further clarity on a wide array of issues currently pending, including cases addressing the scope of the president’s ability to withhold information from Congress. This is an issue of particular importance at the moment, not just as it relates to Congressional oversight, but more immediately as it concerns President Trump’s recent suggestion that he has no constitutional obligation to share with Congress certain information related to the allocation of million of dollars under the new federal economic stabilization law.

Moreover, there is something odd about the argument that, were the public to have access to oral arguments before the Supreme Court – arguably, the least influential part of the appellate process – neither the justices not the advocates before them would be able to resist the temptation to grandstand. Many state high courts have experimented with televising oral arguments, and there is no evidence that either the judges or the attorneys treat the occasion with less seriousness, or that it has affected the sense of decorum that traditionally attends appellate arguments.

At the end of the day, we have passed the point at which it can be denied that the Supreme Court and its decisions have become more central to American life than the framers could possibly have imagined. It remains for others to debate whether this is a salutary development. The federal government in the past century has evolved to operate in ways the framers did not explicitly contemplate. One result has been conflicts about the separation of powers between the legislative and executive branches, and between the federal and state governments, which lawmakers and citizens alike expect the Supreme Court to resolve—and this is not to mention the myriad and important individual rights issues on the Court’s docket.

To the extent the Court has become the decisionmaker of last resort, the American people would benefit from seeing at least a glimpse of the way in which it works. Such access might provide some assurance to citizens who may question the Court’s role, or the pledge of its members to resolve the matters before them based upon argument and reason, rather than partisan affiliation. In the end, opportunities for the American people to see for themselves what the justices do could well enhance the respect upon which the Court depends for its legitimacy.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

Minnesota broadcasts criminal sentencings … and the world doesn’t end

One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.

There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.

Massachusetts set to lift ban on cell phones in courthouses

Following the recommendation of its Access to Justice Commission, the Massachusetts Trial Court Department is taking immediate steps to lift the ban on cell phones on state courthouses.

The Commission’s report

cited hardships such as the inability of self-represented litigants to present photos or text messages as evidence to a judge, to consult their calendars, to reach child care providers, or to transact other “essential” business.

The recommendations of the working group include a full review of all courthouse bans to determine whether they are justified, and a pilot program to test the use of magnetically locked security pouches.

“Instead of using a strategy that relies on prohibiting the possession of cell phones as a condition of entry, each courthouse should employ a strategy, tailored to its security needs, that relies on regulating and controlling the use of cell phones within the building,” the authors of the report wrote.

This seems like a sensible step in the right direction. The made sense to ban phones in an earlier era, where the potential distraction might outweigh their value. But the near necessity of cell phones today–for child care and emergency communications, as memory and scheduling devices, and as carriers of critical personal information–merits a different response.

 

 

Ontario Court of Appeals allows livestreaming of carbon tax dispute

Ontario’s highest court is allowing livestreaming this week of an important case between the provincial government and Canada’s federal government over the latter’s imposition of a carbon tax. CBC cameras are being allowed to capture the arguments and share the broadcast with other media. These are the first televised arguments at the Ontario Court of Appeals since 2007. The first day of oral arguments can be found here.

Earlier this year, the Saskatchewan Court of Appeal also allowed livestreaming in a case involving a provincial challenge to the carbon tax, underscoring the special nature of this litigation. The real lesson: don’t get too comfortable with cameras in Canadian provincial courtrooms; the practice is still remarkably rare.

What should we expect when Justices Alito and Kagan testify before Congress this week?

Political theater, to be sure — but of the potentially useful variety.

U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.

The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.

Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.

The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.

To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.

Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.

Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.

 

 

Saskatchewan debates more extensive use of courtroom cameras

The Saskatchewan Court of Appeal is allowing live streaming of an oral argument for the fourth time this week, in a case involving a challenge to Canada’s federal carbon tax. The event has reignited discussion about moving cameras into the trial courts. While this story’s headline suggests that the discussion is more developed than it actually is, it is nice to see increased recognition that courtroom cameras typically carry more benefits than risks.

Sheriff accused of manipulating courtroom cameras to view juror’s notebook during trial

Regular readers of this blog know that I am a strong advocate of courtroom cameras to promote transparency and educate the public about the work of the courts. So when access to courtroom cameras is abused, I am obligated to note that as well.

In a truly odd case coming out of San Juan County, Washington, the court dismissed assault and trespass charges against a criminal defendant after it was discovered that the local sheriff was manipulating a courtroom camera to view defense documents and a juror’s notebook during trial. The manipulation was only discovered when the defense attorney was reviewing a calendar at the court administrator’s desk during a break in the trial.

Loring [the defense attorney] said she was reviewing a calendar at the desk of Jane Severin, the court administrator, which has two computer monitors — one for work and the other showing views from security cameras in and outside the San Juan County Courthouse. According to court documents, Loring said her attention was drawn to movement of one of the normally stationary cameras. A closer look revealed it was the camera located above the jury box in district court, and that it was panning, tilting and zooming in on the jury box and counsel tables.

Good grief.

The sheriff maintain that any camera manipulation was accidental and unintentional. The judge dismissed the case.

India’s Supreme Court to introduce live streaming

The Indian Express reports:

Ushering in more transparency in the judiciary’s work, the Supreme Court on Wednesday gave its nod to live-streaming of court proceedings, saying this will bring more accountability and enhance the rule of law.

A bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, in two concurring judgements — one by CJI Misra and Justice Khanwilkar and other by Justice Chandrachud — said: “We hold that the cause brought before this court by the protagonists in larger public interest deserves acceptance so as to uphold the constitutional rights of the public, and the litigants in particular.”

Delving into the benefits of allowing this, Justice Chandrachud said, “Above all, sunlight is the best disinfectant.”

India gets it. When will we be able to say that of our Supreme Court?