Last week, while nodding my head at the cogency of the 9,000th New York Times editorial on "the public's right to observe" the Supreme Court's oral arguments. I fell to musing about whether the justices' aversion to letting cameras into their courtroom could ever be overcome.
Then I had an epiphany.
But first, some background. It is obvious to all thinking people (or. at least, journalists), excepting the nine justices, that we have a constitutional right to watch the Supreme Court on television.
Aside from the public's right to know just about everything reporters might ever want to tell them- from how to construct a nuclear bomb to the sex lives of our politicians- the Court's oral arguments are a vital governmental process. Powerful public officials doing the public's business have a duty to expose themselves to the broad scrutiny that can only come through television. It would be a great educational thing-better for the kids than Big Bird and Goosebumps. Sunshine is the best disinfectant. Et cetera, et cetera, et cetera, as Yul Brynner (or was it Yogi Berra?) used to say.
And, of course, Justice Antonin Scalia especially should stop carping at cameras because he'd come across so much cuter and wittier on TV than he does in those nasty dissents calling his colleagues a bunch of ignorant, irrational, sneaky, democracy-destroying couch potatoes, or whatever. He would be all the more telegenic with that great new beard, which was better two hours after his last shave than Yasir Arafat's after 50 years of rubbing Rogaine into his cheeks.
So why won't the Court let the cameras in? The pretexts offered by people like the late Chief Justice Warren Burger-about the Court being trivialized by the broadcasting of selective snippets and sound bites-don't wash. There would be nothing new about that: Banning cameras and recording devices has only increased the distortion, by running the snippets and sound bites through the imperfect medium of reporters' notes. And they can't kick reporters out. (Can they?)
Another pretext: The late Justice Thurgood Marshall told me that he had reversed his previous pro-camera position after watching the Senate Judiciary Committee's members (among others) posturing for the cameras at the Robert Bork confirmation hearing in 1987. Marshall worried that the justices would do the same.
But Marshall had a twinkle in his eye (as usual) and was partly joking (I think). Who really believes that a little thing like a camera could convert the justices into nine Joe Bidens? I can't imagine that any justice now sitting would admit to any such apprehension. Indeed, they are estopped from doing so by their pretensions to being above the petty pandering to plebeians by which mere politicians practice their profession. Justices who claim the power to rewrite the Constitution as they go along can hardly cower behind concerns about being tempted by television to turn into teen-age werewolves.
That leaves the two real reasons the justices don't want to be on television: They like their anonymity, and they love their mystique.
The latter concern (among others) is captured by Louisville lawyer Donald Vish, who observes: "Aboriginal tribes believe the camera steals bits of soul from the person photographed. The O.J. Simpson trial proves they're right"
Well, I suppose if you've got mystique, you won't gladly part with it. I can even dig the justices' craving for anonymity-"their quaint desire to shop unrecognized at local supermarkets," as the Times editorial (with ever so subtle a dis) called it.
Life as a justice is sweet. All that power, without being pestered by plagues of autograph-seekers and nut cases, and without a bunch of bodyguards hanging around. The pleasures of privacy abound:
• Chief Justice William Rehnquist (sans the regal gold stripes he now sports on the bench) was spotted awhile back (by journalist Kim Eisler). On one of his walks around the Court's environs, approaching a car window to which he had been beckoned and gesticulating strenuously in an apparently uphill effort to tell some clueless tourists how to get to Georgetown.
• Justice John Paul Stevens, who spends time between Court sessions at his condominium in Fort Lauderdale, used to tell people there with whom he and his wife socialized that he worked "for the government." FERC, perhaps?
• Justice Marshall reportedly got a kick (or something) out of tourists at the Court assuming that he was an elevator boy, and telling him which floor they wanted.
• Justices including Lewis Powell Jr. and his successor Anthony Kennedy have obligingly taken snapshots for people who accosted them in or near the Court's marble palace with petitions for photographic assistance.
• Justice David Souter has told of being approached by a man who demanded to know, "Aren't you that judge?" When Souter confirmed this, the man replied, "The hell you are," and walked away.
• Retired Justice Harry Blackmun reportedly used to watch anti-abortion protests outside the Court at close range, savoring the fact that the demonstrators did not recognize the author of Roe v. Wade in their midst.
These last two examples come courtesy of Tony Mauro, USA Today reporter and Legal Times columnist, who adds an editorial comment: "It is an outrage that the most prominent news-gathering medium of the century has to park its tools of trade outside the Court's hallowed doors."
Tony has a point, of course. But so far, the justices aren't buying it. And. in fairness, look what happens to them when they are recognized: Someone (like former Redskins great John Riggins) is liable to say something like, "Come on, Sandy baby, loosen up. You're too tight," and then drop down in a drunken slumber at their feet. Who needs it?
The sad reality is that we can't hold our breath for the justices to appreciate First Amendment values as intensely as journalists do. So perhaps we should seek some way to accommodate both their love of mystique and their passion for privacy.
Here's my epiphany: Let the cameras in, but let the justices put bags over their heads, so that nobody will recognize them!
Better yet, since a bag over the head can get a bit hot-as Sen. Ted Kennedy discovered while wearing one during Anita Hill's testimony at the 1991 Clarence Thomas confirmation hearing-we could let the cameras in on the condition that the justices' faces be obscured on the TV screen, with nine of those little mosaics that they use during televised trials to protect the anonymity of rape complainants.
And if the justices want their voices to remain anonymous, we could scramble them with one of those gizmos that produces the android-speak you hear when you call directory assistance.
These simple expedients would also lay to rest any concerns about television draining off the Court's mystique like air from a leaky tire. What could be more mysterious than watching some of the most powerful and learned people in the nation sitting there with bags (or mosaics) over their heads, firing off questions and comments in android-speak? The only objection I can imagine is that there might be something at., undignified about it. But they can't have it both ways. The public's right to observe cannot be crushed between the rock of judicial privacy and the hard place of judicial dignity. As Johnnie Cochran might put it: If your dignity sags, you can take off your bags. If you're feeling prosaic, have them drop your mosaic.
Now, cynics may suspect that my modest proposal proceeds from a self-interested motive- that it has something to do with my connection to Court TV, which would, no doubt, jump at the opportunity to put a camera in the Supreme Court.
Not so. In fact, my advice to Court TV (were the company to seek it) would be to leave the Supreme Court to C-Span or maybe the Learning Channel. Don't waste a camera on the place. As someone (moi) said some seven years ago, "With that still-life tableau of black scarecrows perched up there listening to law talk as opaque to the average American as Jimmy Swaggert speaking in tongues, the oral arguments are an orgy of dullness." And these days, the justices don't even listen to the law talk. Rather, they vie for precedence in the hectoring of hapless lawyers, who consider it a moral victory if they can proceed without interruption from the beginning to the end of a prepositional phrase.
After a few minutes of such cacophony, the average American would flee for the soaps. It would be a ratings disaster.
In fact, before long the justices might well discover that they didn't really need bags over their heads. Nobody would be watching them anyway.