It has happened again. Yet another justice who spoke favorably as a nominee about allowing cameras in the Supreme Court has gone native and now thinks it's a bad idea.
Justice Sonia Sotomayor, in several stops on her often televised book tour, has opined that televising oral arguments "could be more misleading than helpful" to viewers who have not delved into the issues before the court. She told Charlie Rose on PBS Feb. 6 that "very few of them understand what our process is." That potential for mass misunderstanding, in Sotomayor's view, justifies killing the lights.
At New York City's 92nd Street Y the day before, according to New York magazine, she said, "Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached. Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil's advocate with lawyers."
That was a far cry from what Sotomayor said to the Senate Judiciary Committee in 2009. She had had "positive experiences" with televising appeals court arguments on the U.S. Court of Appeals for the 2nd Circuit, and promised then-Sen. Arlen Specter that she would "certainly relay those positive experiences" to her new colleagues. As a "really good litigator," she added, she felt confident she could persuade them to give cameras a try.
The persuading apparently went in the other direction.
Sotomayor's conversion was preceded by a similar switch by Justice Elena Kagan who, as a nominee, was an enthusiastic advocate for cameras in the court. "I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people," she told the Senate in 2010. Last September, two years into her tenure, she told a University of Michigan audience, "I have a few worries, including that people might play to the camera." She also expressed concern about how the footage would be used.
Other justices as well, from Samuel Alito Jr. to Ruth Bader Ginsburg, went largely negative once they joined the court, after they had expressed at least open-mindedness on the subject of camera access beforehand.
For years, the strategy among advocates of cameras in the courtif it can be called a strategywas to hope that as younger, more media-comfortable justices joined the court, the institution's obstinate opposition to cameras would melt away. In fact, the only thing that has melted away is the young justices' resolve to advocate for cameras.
Why does this keep happening? Why do new justices who are far from shy in most other venues seem to wither in the face of institutional opposition by their new colleagues?
Possible explanations abound. The memory of the O.J. Simpson trial still burns brightly for some. The rite of passage that all justices sharethe intrusive, nasty confirmation process itselfleaves new justices bruised and thinking twice about the virtues of media coverage. And during that process, their handlers might urge them to say positive things about cameras in the court to mollify the Senate and the media, sure in the knowledge that once they join the court, there's nothing anyone can do about it if they "change their minds."