18th Sep 2014 from TwitLonger

Full Justice Breyer remarks on televising SCOTUS - Yale Law School, 9/18/14

The following is a transcription of Justice Stephen Breyer's answer to a student-submitted question asking for his thoughts on televising #SCOTUS (the question and answer begin at 50:18 mark in the video):

“I can tell you the issue. I can tell you why I don’t think it will happen too soon. It’ll happen eventually, because eventually you’ll have judges appointed who have grown up with this and they can’t understand why it shouldn’t be there. But the issue for us who haven’t grown up with it, is the following: on the one hand, if we could have, in the oral argument, a television camera, most of the time I think 90% of people would see if they saw this whole oral argument is they would see nine people struggling with pretty difficult problems, and they’d soon come to the realization that there are two sides to these issues, even the ones you think are most one-sided, and you’d listen for a while and I think they’d learn something, and that would be a plus.

But what’s the negative? The negative is: oral argument is about 3% of the whole thing. We get most of our stuff in writing. And oral argument is very brief, and people identify with people. They’ll see a good side and bad side. A good lawyer and a bad lawyer; a good client and a bad client. We’re writing our opinions for 311 million people who are not in that room. I mean, the law as far as we’re doing it—you’re writing for all citizens of Massachusetts and maybe beyond, not the two people who are there, and that’s the job of an appellate court, and our court. And people won’t get that. And that’s a risk.

But I think, mostly, if you raise something very, very—you get different views on this. When they start putting it on television, I say, it’s not going to affect me. You know, we have the press there anyway—if they want to distort things, they’ll distort things. So what? In Canada, it doesn’t cause a problem. But some pretty knowledgeable people in the press will say, wait ‘til you see the first time that they take a sound byte and they put it on the popular program, and they make you say with a scowl the exact opposite of what any sane person would’ve thought you said. And you think it’s tough to do that? No, it isn’t, they’re experts. And the first time you say the death penalty thing is alright—there you are, Torquemada. And, you see, they will affect your opinions. Or you’ll keep quiet and won’t ask any questions. And we don’t know. The answer is, we don’t know. But all of us are conservative where the Court is concerned. We are trustees. We’re an institution that by and large has served the country pretty well. So I’ll say we’re nervous about it. And probably that’s the most favorable you’ll get. I mean, nervous, uncertain, not aware of what’s going to happen. And as long as we’re uncertain… it’s tough.

And that may work in lower courts—I used to be totally for it when I was on a court of appeals. I said, why not let in the press? Who cares? Besides, they’ll never come. Perfect! And the press is there, of course. Our opinions are open. They explain everything. There isn’t really a secret part. It’s really the conference where we discuss things frankly. So there you have some of the pros and cons. And as long as we’re feeling that there are these pros and cons—and nervous about what it would do to the institution—you’re going to have an uphill battle getting us to do it. And I think I’m being honest in saying that’s what I think the problem is.”

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