The late David Souter said cameras would roll into the Supreme Court “over my dead body.”

There’s no reason to think the justices have been waiting for Souter’s death to start televising their public hearings, but it is a good reminder that the court’s proceedings should be televised, even if that’s unlikely to happen anytime soon.

As shown by the glowing tributes to the justice who retired in 2009, there’s much to admire about Souter. But he was wrong when it comes to cameras in the court. And his objection is not an outlier among the justices. If anything, the dramatic phrasing of the mild-mannered jurist’s objection reinforces how mainstream of a judicial view it is.

But whether the justices are opposed, in favor or indifferent shouldn’t matter. It shouldn’t be up to those powerful public servants whether the people bound by their rulings can watch them work (beyond the relative few who make it into the Washington, D.C., courtroom on a given day).

Speaking to Congress in 1996, Souter cited his prior experience as a justice on New Hampshire’s supreme court, which did allow cameras. He said being filmed affected the questions he would ask, out of concern that he could be taken out of context on the evening news.

Souter’s concern is understandable but unpersuasive. No one wants to be taken out of context. Why should the court be special?

Defenders of the status quo point to Congress, where grandstanding members’ outlandish remarks make for good television. You don’t want the Supreme Court to be like Congress, do you? So the argument goes.

But it’s precisely because the Supreme Court is not Congress that the country could benefit from broadcasting the justices’ public work. If they started to act more like members of Congress due to being televised, that would reflect on them, not the medium.

Another counterargument is that the court’s real work is in the final product: the written opinions. The implication being: Who cares if most people don’t see what happens along the way?

But the way the court announces its opinions highlights that the institution is simply choosing not to be as transparent as it could be. While the court agrees to stream live audio of its hearings, it refuses to stream the audio when the justices announce the resulting opinions; that audio only becomes available months later. It’s true that people can instantly read the opinions and related media coverage. But as I wrote a few years back, there’s no good reason not to broadcast at least the audio of the words that the justices choose to share with whoever manages to get into the courtroom that day.

So, you can see what we’re dealing with here. Or rather, you don’t get to see (or, in the case of opinion announcements, hear) — and that’s the problem.

As it happens, C-SPAN — whose congressional coverage lets us see the above clip of Souter today — recently put in a request to Chief Justice John Roberts to televise Thursday’s hearing stemming from President Donald Trump’s attempt to restrict birthright citizenship. Given the court’s resistance over the years, no one should expect this to be the case that starts the televised revolution. But it would be as good a place as any to start.   

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