In the weeks since the Supreme Court heard oral arguments in the cases challenging the constitutionality of the Affordable Care Act, I’ve made a number of presentations about the litigation, and one question keeps coming up: Why doesn’t the Supreme Court televise its hearings?
It makes written transcripts of its proceedings available. It makes audio recordings of oral arguments available, sometimes on the same day as the hearing. So why not TV?
After all, oral argument at the Supreme Court is already public. There are seats where members of the press can watch the proceedings. Members of the Supreme Court Bar have their own viewing area. And there are about 75 seats from which people like you and me can watch the entire proceedings. For famous cases, demand for seating far outstrips supply. For the healthcare lawsuits, people had begun to line up days ahead of time. So why not just put the arguments on TV?
Because televising the oral arguments would give the public a fundamentally mistaken impression of the nature of the Court’s work.
In fact, the oral arguments represent only a small fraction of the Court’s actual deliberations, and not the most important part. The really important arguments happen in writing; and their most important deliberations take weeks and months, not hours and days.
After the Court has decided to hear a case, but before oral argument, litigants file written arguments and counter-arguments with the Court; these typically run approximately 50 double-spaced typed pages. In high profile cases, other interested parties will submit (with the permission of the Court) additional written arguments. Scores of such briefs have been filed in the complex litigation over the Affordable Care Act.
Before the time appointed for oral argument, the justices will have read all of the official briefs and many of the other, “friend of the court,” documents as well. In high profile cases, it is likely, too, that they will have looked at the lower court decisions they are being asked to review. It is safe to assume that each justice spent at least several hours carefully reading these documents.
The time allotted for oral argument, by contrast, is usually only an hour. During that time, the attorneys try to make their major points, but not long after they begin to make their case, they are interrupted by questions from the justices, to which they respond as best they can.
Because the justices have already seen the major arguments in writing, it only makes sense for them to ask questions they don’t already know the answer to. Often, they ask the attorneys to think about the broader legal consequences that would follow, if the justices reached the decision they are advocating.
The true deliberations happen only after the oral argument has concluded. On the Friday following oral argument, the justices take a preliminary vote on the merits of the case. If the Chief Justice votes with the majority, he decides who will draft the opinion of the Court; if the Chief votes with the minority, the most senior justice in the majority decides who writes the opinion. In any case, the individual justices are free to write their own opinions, expressing their reasons either for joining the majority or for dissenting from it. For the hard and important cases, the real work happens when the justices sit down to write their opinions. Sometimes, as one puts words on paper, the arguments flow as expected.
Sometimes, though, the argument just “won’t write.” As one puts the words down on paper, the result isn’t so persuasive, and after reading what one’s colleagues have written, it emerges that the other side has the better argument. When that happens, a justice may change his or her mind — and her vote, and sometimes, the outcome of a case.
For example, it is widely believed by constitutional scholars that during the writing period Justice Kennedy changed his vote in the landmark case of Planned Parenthood of Southeastern Pennsylvania v. Casey, thus flipping the result, from overruling Roe v. Wade to reaffirming Roe and the right to abortion.
There is no way that these deliberations and the work of opinion writing can be covered on television. Televising only the oral argument would focus attention and in precisely the wrong place, creating a distorted image of the Court’s work.
To learn what we really need to know about the justices’ thinking, we need only wait and read their written opinions.
Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.
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