U.S. Supreme Court justices still talk about television cameras as if they were deeply mysterious, brain-draining devices not to be approached with anything shorter than a 40-foot pole. But in Canada's Supreme Court, where proceedings have been broadcast for more than 20 years, cameras are just part of the scenery, barely worth a mention.
That was the message of a telling discussion last week at the judicial conference of the U.S. Court of Appeals for the 10th Circuit in Colorado Springs involving Justice Ruth Bader Ginsburg, Canadian chief justice Beverley McLachlin, former 10th Circuit chief judge Robert Henry, and NPR's Nina Totenberg. Media coverage of the conference understandably focused mainly on Ginsburg's earlier appearance, in which she poignantly gave a humorous speech her husband Martin had prepared for the gathering before he died June 27.
Ginsburg shifted quickly to the roundtable discussion where, inevitably, the subject of cameras in the court came up. (See video of the discussion via C-SPAN, after the jump.) Ginsburg recited the objections raised by now-retired justice David Souter, the only one of her colleagues who had direct experience with cameras, when he was a justice on New Hampshire's Supreme Court. "He thought the lawyers were acting up, for the cameras," said Ginsburg. "Worse," she added, "he felt inhibited. He was censoring his own questions," for fear that an exchange that would make sense to lawyers would confuse or mislead lay viewers.
Even though Souter is no longer a sitting justice, Ginsburg quaintly concluded that on a collegial court, if any justice has feelings as strong as his on the subject, colleagues should defer. It's safe to conclude that in Souter's absence, one or more justices have gladly seized Souter's mantle of stubborn resistance to the premier medium of the twentieth century.
McLachlin responded with the grace and deference you would expect from a dignitary on foreign turf. But it was possible to infer from her tone that this was a discussion that for her was very 1980s, a topic she has not had to talk about in Canada for a decade or two, but has to refresh every time she speaks in the United States.
"We decided to do this on a trial basis about 21 years ago," McLachlin said. "We were very wary. But what we have is this: We have some stationary cameras. We are just oblivious to them. I don’t think I ever think about them in the course of a hearing … They’re unobtrusive."
McLachlin said the hearings in full are broadcast "not at prime time" on CPAC, Canada's version of C-SPAN, but are also excerpted for nightly news shows -- the snippets that U.S. justices fear like the plague. In those brief reports, McLachlin said the media have been "very very very responsible" in giving balanced reports, perhaps in part because they know the court could end the experiment at any time.
A member of the Canadian Supreme Court since 1989, McLachlin said she could only recall one time when a lawyer gave a "barnstorming kind of speech" to the court that might have been directed at the cameras. "I told him to sit down," she said. "And he did."
Responding more generally to Souter's objections that the presence of cameras affect the behavior of the judges and the lawyers, McLachlin said, "I don't think my colleagues and I would say that it has."
She concluded, "What I'm trying to say is that nobody's dumbing down the process" because of cameras. "Nobody is out there trying to put on a performance."
Footnote: McLachlin also spoke of other measures her court has taken to help the press cover its decisions, including briefings and previews of rulings before they are released. In some cases, reporters are invited to a "lock-up" session where they can read the decision before it is released, but cannot leave or use electronic devices so as to prevent leaks or scoops. She jokingly recalled that during a recent meeting between her court and the U.S. Supreme Court, Chief Justice John Roberts Jr. seemed especially impressed with that arrangement. She said Roberts told Justice Antonin Scalia, "Did you know they actually lock up the press?"