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AMERICAN BAR ASSOCIATION
YOUNG LAWYERS DIVISION
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
RESOLVED, That the American Bar Association urges the United States Supreme Court to
record and make available video recordings of its oral arguments.
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REPORT
The Supreme Court currently provides transcripts1 and audio recordings of its oral
arguments.2 It does not, however, provide video recordings of those same proceedings. The
ABA has previously taken positions that touch on the issue of cameras in the courtroom,
generally, but not specifically on recordings of U.S. Supreme Court arguments. The resolutions
that have touched on this issue are Resolution 106 (Midyear, 1995), which had urged the U.S.
Judicial Conference to “authorize further experimentation with cameras in federal civil
proceedings by re-instituting a pilot project to permit . . . recording and broadcasting of civil
proceedings in selected federal courts . . . .” The other is Resolution 113 (Midyear, 2005) which
had, among other things, stated that “[i]f cameras are permitted to be used in the courtroom, they
should not be allowed to record or transmit images of the jurors’ faces.” Again, neither
resolution spoke directly to recordings of U.S. Supreme Court arguments, though the ABA has
previously lobbied in support of cameras in the courtroom generally – including in the Supreme
Court.3
There is a qualitative difference in the understanding one can get from listening to a
recording of an argument, versus watching that same argument. The audio recording does not
capture the justices’ non-verbal reactions to the lawyers’ arguments, the lawyers’ answers to the
justices’ questions, or the justices’ reaction to each others’ questions.
Commentators have remarked for years on the issues the lack of video recordings cause.4
They have noted the Supreme Court is the lone branch of government whose proceedings
citizens cannot watch.5 Indeed, there is even question whether denying access to video cameras
in the Court is consistent with its own First Amendment jurisprudence.6
Commentators have also remarked on how the inability to watch arguments contributes to
the narrowing of the number of lawyers competent to practice before it.7 As reported by the
New York Times, 66 lawyers were involved in 43 percent of the cases the Supreme Court heard.8
Of those, “63 of the 66 lawyers were white, 58 were men, and 51 worked for firms with
1
http://www.supremecourt.gov/oral_arguments/argument_transcript.aspx
http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
3
http://www.americanbar.org/content/dam/aba/migrated/poladv/letters/judiciary/051117letter_ca
meras.authcheckdam.pdf (summarizing the history of support for cameras in the court within the
ABA and its sections);
http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014dec9_sushineincourtroo
m.authcheckdam.pdf (same, as of 2014).
4
http://www.nytimes.com/2014/12/26/opinion/the-best-lawyers-money-can-buy.html;
http://www.nytimes.com/2015/04/24/opinion/open-the-supreme-court-to-cameras.html.
5
Id.
6
Id.
7
http://www.nytimes.com/2014/12/26/opinion/the-best-lawyers-money-can-buy.html;
http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac2013/sac_20
13/54_%20cameras_are_in_the_courts.authcheckdam.pdf.
8
http://www.nytimes.com/2014/12/26/opinion/the-best-lawyers-money-can-buy.html.
2
1
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primarily corporate clients.”9 This narrowing of expertise is not consistent with our commitment
to ensuring access to justice or to fostering diversity within the profession.
The Supreme Court’s gallery can seat approximately 250 people. This severely limits the
number of people who can view its proceedings. That, and the fact that one must travel to
Washington, D.C., to view the proceedings, limits the ability of lawyers to learn from seeing its
arguments. It also limits the ability of citizens to view the process of deciding important
constitutional issues. More open proceedings would thus help increase educational opportunities
for lawyers, and citizens’ access to – and ability to understand – the process of decisions being
made. This would likely enhance respect for the judiciary and the rule of law, both of which are
critical in light of the current climate of hostility to the judiciary.
Indeed, the ABA itself has remarked on how providing access to video recordings of
arguments could further the above-referenced purposes in letters to Congressional Committees
charged with considering the issue:
The ABA remains committed to the belief that all federal courts, including the
Supreme Court, should experiment with and expand electronic media coverage of
both civil and criminal proceedings. We, like many congressional supporters of
this legislation, believe that courts that conduct their business under public
scrutiny protect the integrity of the federal judicial system by advancing
accountability and providing an opportunity for the people they serve to learn
about the role of the federal courts in civic life.10
At the time of the referenced letters (the most recent of which was sent in 2014), however, the
ABA took the position that the decision to broadcast proceedings should be made on a case-bycase basis.11
There is also pending legislation in Congress on this issue. H.R. 94, introduced on
January 6, 2015, is called the “Cameras in the Courtroom Act.” It “[r]equires the Supreme Court
to permit television coverage of all open sessions of the Court unless it decides by majority vote
that allowing such coverage in a particular case would violate the due process rights of any of the
parties involved.”12 This legislation has been referred to the Subcommittee on Courts,
9
Id.
10
http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014dec9_sushineincourtroo
m.authcheckdam.pdf;
http://www.americanbar.org/content/dam/aba/migrated/poladv/letters/judiciary/051117letter_ca
meras.authcheckdam.pdf.
11
Id.
12 https://www.congress.gov/bill/114th-congress/house-bill/94 (proposing an amendment to add
§ 678 to Title 28, U.S.C.). This legislation is more strongly worded than an earlier proposal,
which would have merely authorized cameras – not mandated them.
http://www.scotusblog.com/2014/12/congress-again-considers-cameras-in-thecourtroom-including-at-the-supreme-court/
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Intellectual Property, and the Internet – a subcommittee that received the letter quoted above
from the ABA.
States’ experience has shown that it can work. Arizona, for example, provides live and
archived video recordings of its proceedings on the Court’s webpage, and offers its archived
video on YouTube.13 Likewise, the Ninth Circuit offers both live and archived video of its
proceedings.14 The United States Supreme Court should do the same.
This resolution is consistent with, and furthers, ABA policy.15 The ABA’s goals include
the following:
Goal II: Improve Our Profession.
Objectives:
1.
Promote the highest quality legal education.
2.
Promote competence, ethical conduct and professionalism.
Goal III: Eliminate Bias and Enhance Diversity.
Objectives:
1.
Promote full and equal participation in the association, our profession, and
the justice system by all persons.
2.
Eliminate bias in the legal profession and the justice system.
Goal IV: Advance the Rule of Law.
Objectives:
1.
Increase public understanding of and respect for the rule of law, the legal
process, and the role of the legal profession at home and throughout the
world.
2.
Hold governments accountable under law.16
3.
Work for just laws, including human rights, and a fair legal process.
4.
Assure meaningful access to justice for all persons.
5.
Preserve the independence of the legal profession and the judiciary.
For the reasons stated above, this resolution furthers the above goals.
Respectfully submitted,
Lacy L. Durham, Chair
Young Lawyers Division
February 2016
13
http://www.azcourts.gov/AZSupremeCourt/LiveArchivedVideo.aspx;
https://www.youtube.com/watch?v=F-ru9GL6qKI;
14
http://www.ca9.uscourts.gov/media/live_oral_arguments.php;
http://www.ca9.uscourts.gov/media/.
15
http://www.americanbar.org/about_the_aba/aba-mission-goals.html.
16
Id.
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GENERAL INFORMATION FORM
Submitting Entity: American Bar Association Young Lawyers Division
Submitted By: Lacy L. Durham, Chair, ABA Young Lawyers Division
1. Summary of Resolution(s). The purpose of this resolution is to urge the United States
Supreme Court to provide video recordings of its oral arguments.
2. Approval by Submitting Entity. Approved by the Assembly of the ABA Young Lawyers
Division on July 31, 2015.
3. Has this or a similar resolution been submitted to the House or Board previously?
No
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
The resolution is consistent with Goals II, III, and IV of the American Bar Association.
The resolution is also consistent with Resolution 106 (Midyear, 1995), which had urged the
U.S. Judicial Conference to “authorize further experimentation with cameras in federal civil
proceedings by re-instituting a pilot project to permit . . . recording and broadcasting of civil
proceedings in selected federal courts . . . .”
The resolution, which pertains only to arguments before the U.S. Supreme Court, does not
impact Resolution 113 (Midyear, 2005) which had, among other things, stated that “[i]f
cameras are permitted to be used in the courtroom, they should not be allowed to record or
transmit images of the jurors’ faces.”
In August 2014, the ABA deleted its endorsement of electronic media coverage in its Fair
Trial and Free Press Criminal Justice Standards and replaced it with a best-practice standard
advising courts to think proactively and develop plans that address electronic media coverage
and other methods for accommodating the public interest in criminal proceedings.17
5. If this is a late report, what urgency exists which requires action at this meeting of the
House?
N/A
17
http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014dec9_sushineincourtro
om.authcheckdam.pdf;
http://www.americanbar.org/groups/criminal_justice/standards/crimjust_standards_fairtrial_blk.h
tml#3.8.
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6. Status of Legislation. (If applicable)
H.R. 94, introduced on January 6, 2015, is called the “Cameras in the Courtroom Act.” It
“[r]equires the Supreme Court to permit television coverage of all open sessions of the Court
unless it decides by majority vote that allowing such coverage in a particular case would
violate the due process rights of any of the parties involved.”18
Fed. R. Crim. P. 53 currently prohibits cameras in the courts for criminal proceedings. The
Judicial Conference of the United States had a pilot program pertaining to cameras in the
courts, which started on July 18, 2011. The 14 participating courts (some district courts,
some circuit) volunteered to participate in the experiment. Although the data collection
portion of the pilot concluded July 18, 2015, participating courts may continue to record
proceedings and post them on uscourts.gov until the Judicial Conference considers
recommendations regarding the pilot, which may occur at its March 2016 session. There is
nothing pending applicable to U.S. Supreme Court arguments.
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
A copy of the resolution would be distributed to the Justices of the United States Supreme
Court.
8. Cost to the Association. (Both direct and indirect costs)
None, other than the costs of distributing the resolution.
9. Disclosure of Interest. (If applicable)
N/A
10. Referrals.
American Judicial System as well as all sections/divisions/forums.
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Stefan M. Palys
Assembly Speaker, ABA Young Lawyers Division
Stinson Leonard Street LLP
1850 N. Central Avenue, Suite 210
Phoenix, AZ 85004-4584
602.212.8523
stefan.palys@stinson.com
18
https://www.congress.gov/bill/114th-congress/house-bill/94.
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Lacy L. Durham
Chair, ABA Young Lawyers Division
Deloitte Tax, LLP
2200 Ross Avenue, Suite 1600
Dallas, TX 75201
214.840.1926
lacydurhamlaw@yahoo.com
Andrew M. Schpak
House of Delegates Representative, ABA Young Lawyers Division
Barran Liebman LLP
601 SW 2nd Avenue, Suite 2300
Portland, OR 97204
503.276.2156
ASchpak@barran.com
12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Andrew M. Schpak
House of Delegates Representative, ABA Young Lawyers Division
Barran Liebman LLP
601 SW 2nd Avenue, Suite 2300
Portland, OR 97204
503.276.2156
ASchpak@barran.com
6
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The purpose of this resolution is to urge the United States Supreme Court to provide
video recordings of its oral arguments.
2.
Summary of the Issue that the Resolution Addresses
The United States Supreme Court is the only branch of government whose proceedings
are not easily accessible to the public. The Supreme Court’s gallery can seat only 250 people—
which severely limits the number of people who can view its proceedings—and necessitates
travel to Washington, D.C. This limits the ability of citizens to view the process of deciding
important constitutional issues.
3.
Please Explain How the Proposed Policy Position will address the issue
Video recordings of oral arguments will allow citizens to access—and better
understand—the process through which the United States Supreme Court arrives at its decisions.
This would enhance respect for the judiciary and the rule of law.
4.
Summary of Minority Views
No minority views were expressed; the resolution passed unanimously on the Young
Lawyers Division Assembly’s consent calendar.