These charges of partisanship come in the context of a series of major decisions in which the court has divided along ideological lines, dating back to Bush v. Gore. Many have involved issues that affect the daily lives of ordinary citizens, including who should live (in abortion cases) and who should die (in death penalty cases). On Monday, the court agreed to weigh in on another pivotal issue: Congress' authority to mandate health-insurance coverage under President Obama's health-care reforms. As Alexis de Tocqueville observed more than 150 years ago, in America, virtually every dispute seems to end up in court.
The legitimacy of our judicial system depends on public confidence in its application of the rule of law. When precedents are repeatedly overruled in 5-4 decisions, the justices' votes may seem to be according to their personal and political preferences rather than objective interpretations of the law. A Gallup Poll last month found that only 46 percent of Americans approve of the Supreme Court's performance.
One way the court could improve that public perception is by televising its proceedings. Televised congressional hearings, especially on Supreme Court nominations, have already drawn extensive audiences and provided insight into the legislative and judicial processes.
The idea has some support on the court. In testimony before a Senate committee in April, Justice Thomas said televising oral arguments would be "a big plus for the court and for the public. . . . I think they'll see that we do our job seriously. We don't always get everything right, but we take it very seriously." In the hearing on her nomination to the court last year, Elena Kagan agreed, saying, "I think it is always a good thing when people understand more about government. ..."
It has been long established that the Constitution guarantees judicial proceedings that are open to the media as well as the public. The Supreme Court recognized the principle in Richmond Newspapers v. Virginia (1980) and specifically addressed the importance of electronic media access. But it has since refused to allow television coverage of its own proceedings.
While it would be preferable for the court to admit cameras voluntarily, Congress arguably has the authority to mandate television coverage. Congress has power over other administrative court matters, such as how many justices there are and when the Court convenes. The Senate Judiciary Committee voted to require television coverage of the court in 2006, 2008, and 2010, but the issue was never taken up on the floor.
The court could try to invalidate such legislation as a violation of the separation of powers, but it may be reluctant to do so in light of public opinion and the precedents set by other courts. A 2009 Gallup poll found that 63 percent of Americans favored televising court proceedings, a figure that rose to 80 percent when respondents were told that the court's chamber holds only 250 people for three minutes apiece. The highest courts of 47 of the states, as well as of Britain and Canada, allow arguments to be televised.
Supreme Court Justice Louis Brandeis was right when he said sunlight is the best disinfectant. In a free society, the public is entitled to maximum governmental transparency.
Arlen Specter is a former U.S. senator practicing law in Philadelphia.