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                                                       Calendar No. 907
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-448

======================================================================



 
      A BILL TO PERMIT THE TELEVISING OF SUPREME COURT PROCEEDINGS

                                _______
                                

               September 8, 2008.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                         [To accompany S. 344]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 344), to permit the televising of Supreme Court 
proceedings, having considered the same, reports favorably 
thereon, without amendment, and recommends that the bill do 
pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Bill To Permit the Televising of 
     Supreme Court Proceedings........................................1
 II. History of the Bill and Committee Consideration..................9
III. Section-by-Section Summary of the Bill..........................10
 IV. Congressional Budget Office Cost Estimate.......................11
  V. Regulatory Impact Evaluation....................................11
 VI. Conclusion......................................................11
VII. Changes to Existing Law Made by the Bill, as Reported...........12

   I. Background and Purpose of the Bill To Permit the Televising of 
                       Supreme Court Proceedings

    The Supreme Court of the United States is the highest Court 
in the Nation. Thousands of Americans ascend its grand marble 
steps each year to watch oral arguments before the Court and to 
see the Justices hand down decisions in cases of great import 
to our democracy. Several previous Chief Justices and Associate 
Justices of the Supreme Court have opined on the importance of 
transparency in our judicial system because it promotes 
accountability. Former Chief Justice Taft noted:

          Nothing tends more to render judges careful in their 
        decision and anxiously solicitous to do exact justice 
        than the consciousness that every act of theirs is to 
        be subject to the intelligent scrutiny of their fellow 
        men, and to their candid criticism * * *. In the case 
        of judges having a life tenure, indeed, their very 
        independence makes the right freely to comment on their 
        decisions of greater importance, because it is the only 
        practical and available instrument in the hands of a 
        free people to keep judges alive to the reasonable 
        demands of those they serve.\1\
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    \1\William H. Taft, Criticisms of the Federal Judiciary, 29 AM. Law 
Rev. 642-643 (1895), quoted in Alpheus Thomas Mason, William Howard 
Taft: Chief Justice 92 (1965).

    Chief Justice Taft was in good company. Eighty years later 
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Justice Brennan wrote:

          [F]ree and robust reporting, criticism, and debate 
        can contribute to public understanding of the rule of 
        law and to comprehension of the functioning of the 
        entire criminal justice system, as well as improve the 
        quality of that system by subjecting it to the 
        cleansing effects of exposure and accountability.\2\
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    \2\Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 587 
(1976)(Brennan, J., concurring).

    Every year, the Supreme Court hears oral arguments in fewer 
than one hundred cases. Some cases garner significant public 
interest because they involve individual rights and freedoms or 
substantial business interests. The Court's public galleries 
permit a limited number of people to watch oral arguments on a 
two-tiered basis: a small number of members of the general 
public can obtain seats for an entire oral argument, while 
other members of the general public view three minutes of 
argument until the next group from the three-minute line is 
ushered into the courtroom.\3\
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    \3\See Visitor's Guide to Oral Argument at the Supreme Court of the 
United States, http://www.supremecourtus.gov/visiting/
visitorsguidetooralargument.pdf at 2 (last visited Feb. 7, 2008).

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    According to one source:

          Several million people each year visit Washington, 
        D.C., and many thousands tour the White House and the 
        Capitol. But few have the chance to sit in the Supreme 
        Court chamber and witness an entire oral argument. Most 
        tourists are given just three minutes before they are 
        shuttled out and a new group shuttled in. In cases that 
        attract headlines, seats for the public are scarce and 
        waiting lines are long. And the Court sits in open 
        session less than two hundred hours each year. 
        Television cameras and radio microphones are still 
        banned from the chamber, and only a few hundred people-
        at most-can actually witness oral arguments. Protected 
        by a marble wall from public access, the Supreme Court 
        has long been the least understood of the three 
        branches of our Federal Government.1A\4\
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    \4\Stephanie Guitton & Peter H. Irons, May It Please the Court: 23 
Live Recordings of Landmark Cases as Argued Before the Supreme Court, 
Including the Actual Voices of the Attorneys and Judges, vii 
(1993)[hereinafter Guitton & Irons].

    Though the Supreme Court has a press gallery, it has never 
in its history permitted live television or radio coverage of 
its open proceedings. Print media who attend can take notes 
during oral arguments as Seth Berlin testified to the Committee 
on November 9, 2005: ``There can be no legal basis for 
distinguishing, as a matter of constitutional right, between 
the recording devices such as cameras and those such as pencils 
and paper.''\5\
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    \5\Cameras in the Courtroom: Hearing Before the S. Comm. on the 
Judiciary, 109th Cong., S. Hrg. 109-331, at 57, N.37 (2005) 
[hereinafter Cameras in the Courtroom] (written testimony of Seth 
Berlin) (citing Minneapolis Star & Tribune Co. v. Minnesota Comm'r of 
Revenue, 460 U.S. 575, 591-92 (1983) (striking down state tax statute 
singling out small group within the press because it ``presents such a 
potential for abuse that no interest suggested by [the State] can 
justify the scheme''); Arkansas Writers' Project, Inc. v. Ragland, 481 
U.S. 221 (1987) (same); Cosmos Broad. Corp. v. Brown, 471 N.E.2d 874, 
883 (Ohio Ct. App. 1984)(``[1]f the print media, with its pens, pencils 
and note pads, have a right to access to a criminal trial, then the 
electronic media, with its cameras, must be given equal access 
too.'')).
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    The Supreme Court did not begin recording oral arguments on 
audiotape until 1955, one year after the Court's landmark 
decision in Brown v. Board of Education that held 
unconstitutional State-sanctioned segregation in public 
schools.\6\ In testimony before the Judiciary Committee, 
Professor Peter Irons explained that the tapes were kept at the 
National Archives and were accessible to the public until 1986, 
when Chief Justice Warren Burger created a rule prohibiting 
duplication of the tapes and limiting their use to research and 
teaching.\7\ Professor Irons obtained copies of the tapes from 
the National Archives for use in a project to provide edited 
and narrated tapes to schools and the public. In 1993, just 
before the tapes were published, Professor Irons was informed 
that ``the Court was contemplating `legal remedies'''\8\ 
against him for releasing the tapes but, ultimately, Professor 
Irons was able to publish the tapes along with rough 
transcripts he generated with the help of his coauthor 
Stephanie Guitton.\9\
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    \6\347 U.S. 483 (1954).
    \7\Cameras in the Courtroom, supra note 5, at 92.
    \8\Id. at 93.
    \9\Guitton & Irons, supra note 4.
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    Between 1955 and 1993, there were over 5,000 recorded 
arguments before the Supreme Court,\10\ an average of about 131 
arguments annually. The current practice is to release oral 
argument transcripts the day of the argument.\11\ Audiotapes of 
oral arguments are released after the conclusion of the Court's 
term.\12\ Recently, the Chief Justice has granted media 
requests for the prompt release of audiotapes in a handful of 
high-profile cases. This practice, however, has been 
inconsistent and discretionary.\13\
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    \10\See id. at vii.
    \11\See Transcripts and Records of Oral Arguments (Oct. 2006), 
http://www.supremecourtus.gov/oral_arguments/
availabilityoforalargumenttranscripts.pdf (last visited Feb. 7, 
2008)(``The Court's contracted reporting service, Alderson Reporting 
Company, with the aid of a court reporter in the Courtroom and high-
speed technology, will transcribe the oral arguments more quickly, 
therefore, providing the transcripts to the Court for same day posting 
on our Web site.'' (footnote omitted)).
    \12\See id (``At the beginning of the next Term, the recordings are 
transmitted from the Marshal to the Motion Picture, Sound, and Video 
Branch of the National Archives. The Archives' collection contains 
audio recordings of Supreme Court oral arguments from 1955 through the 
immediately preceding October Term. Members of the public can listen to 
or make their own copies of oral argument recordings using their own 
tape recorders, blank tapes, and patch cords at the Motion Picture, 
Sound, and Video Branch. Copies of recordings can also be purchased 
from the Archives.'').
    \13\See e.g., Editorial, The Supreme Court Club, N.Y. Times, Jan. 
16, 2008, at A22 (complaining that ``Chief Justice John Roberts even 
declined a news media request that he release an audio recording of [of 
arguments in an Indiana voter identification case] as soon as the 
argument ended, much as the Court has done in a small number of high-
interest cases since Bush v. Gore in 2000.'').
---------------------------------------------------------------------------
    Despite the Supreme Court's continued reluctance to admit 
cameras or broadcast radio or television coverage of its public 
proceedings, many in Congress believe it is time for the 
Supreme Court to join the other branches of Government in 
allowing television coverage of its public proceedings. Since 
2003, over 30 newspaper editorial boards and letters to the 
editor across the United States have endorsed the idea of 
camera coverage of Supreme Court arguments.\14\ Legal 
scholarship published in journals and law reviews also support 
camera coverage of Supreme Court proceedings.\15\
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    \14\See, e.g., Bruce Peabody, Televise Supreme Court, Daily Record, 
Jan. 18, 2008, available at http://www.dailyrecord.com/apps/pbcs.dll/
article?AID=/20080118/OPINION03/801180309/1096/OPINION (last visited 
Jan. 22, 2008); Editorial, Lights, Camera . . . Court's In Session, 
Republican, Dec. 15, 2007, at A06; Peter G. Verniero, Supreme Court TV, 
Wall St. J., Oct. 31, 2007, at A20; Lisa Scottoline, Chick Wit, The 
Supremes: Just What are Top Justices Really Afraid of?, Philadelphia 
Inquirer, Apr. 15, 2007, available at http://scottoline.com/Site/
Column/chickwit5.html, (last visited Jan. 22, 2008); Mark Trachtenberg, 
Webcasts Open a Window to Texas Supreme Court, Houston Chron., Mar. 29, 
2007; Editorial, Televise Court, Erie Times News, Feb. 28, 2007; 
Editorial, Cameras, Please: Congress Should Push Federal Courts Into 
21st Century, Rocky Mountain News, Feb. 26, 2007, at 34; Editorial, 
Restoring the People's Court, San Gabriel Valley Tribune, Feb. 24, 
2007; Tom Teepen, Time May Be Ripe for TV Coverage of Supreme Court, 
Ventura County Star, Feb. 20, 2007; Editorial, Supreme Court is Sturdy 
Enough to Absorb Modernizing Eye of Television Camera, Morning Call, 
Feb. 19, 2007, at A8; Editorial, Time to Open Up High Court to TV, 
Boston Herald, Feb. 18, 2007, at 22; Editorial, Televising Supreme 
Court Proceedings, Lancaster New Era, Feb. 16, 2007, at 8; Editorial, 
Candid Camera: Specter is Right to Want to Televise the High Court, 
Pittsburgh Post-Gazette, Feb. 16, 2007; Editorial, Justices on Camera: 
Sen. Specter Makes a Strong Case for Allowing Cameras Into Supreme 
Court, Albany Times Union, Feb. 15, 2007, at A10; Editorial, Actions in 
High Court Ready For Prime Time, Republican, Feb. 14, 2007, at A10; 
Editorial, Now Starring: The Supreme Court, Las Vegas Rev. J., Feb. 13, 
2007, at 8B; David Draschler, Do it on a Trial Basis, Nat'l L. J., Vol. 
29, No. 9, at 27 (Oct. 30, 2006); Henry Schleiff, Shine TV Lights on 
the Supreme Court, Miami Herald, May, 1, 2006, at A20; Arlen Specter, 
Hidden Justice(s), Wash. Post, Apr. 25, 2006, at A23; Editorial, 
American Justices?, L.A. Times, Apr. 30, 2006, at 4; Henry Schleiff, 
Letter, Unveil the Justices: Cameras at the Supreme Court Decades 
Overdue, Dayton News J., Apr. 22, 2006, at 04A; Editorial, Justice 
Kennedy Goes Too Far: Misreading the Constitution in a Self-Serving 
Cause, Wash. Post, Apr. 18 2006; Editorial, Unveil the Justices: 
Cameras at the Supreme Court Decades Overdue, Daytona News J., Apr. 13, 
2006, at 04A; Mickey H. Osterreicher, Let Cameras in the Supreme Court, 
Oklahoman, Aug. 12, 2006, at 13A; Bruce Williamson, High Court is Out 
of Touch With TV Coverage, Times Union, Apr. 13, 2006, at A12; 
Editorial, Cameras in Court, Las Vegas Rev. J., Apr. 3, 2006, at 6B; 
Marsha Mercer, Camera Shy Justices?, Fort Wayne J. Gazette, Jan. 1, 
2006, at 7A; Henry Schleiff, Letter, `Sunshine' in Courts, Chi. Trib., 
Dec. 10, 2005, at 25; Editorial, Cameras in the Supreme Court Shine 
Light on Justice System, Pensacola News J., Oct. 5, 2005, at 8A; 
Editorial, TV Brings ``Sunshine'' Into Our Courts: Court TV Wanted St. 
Louisans to see Leonard Little's Trial as it Unfolds, St. Louis Post-
Dispatch, Mar. 31, 2005, at D11; Howard Rosenburg, Let TV Go to the 
Circus, Broadcasting & Cable, Mar. 7, 2005, at 50; Nat Hentoff, The 
Invisible Supreme Court, Wash. Times, Dec. 1, 2003, at A21; but see 
Fred Grimm, Court Decorum Falls Victim to TV Cameras, Miami Herald, 
Feb. 25, 2007, at State and Regional News; Linda P. Cambell, Lights, 
Camera . . . Distraction?, Augusta Chron., Feb. 24, 2007, at A05; and 
Ali F. Sevin, Letter, Supreme Court is Too Serious For TV, Wash. Times, 
Apr. 30, 2007, at B02.
    \15\See, e.g., Marjorie Cohn, Let the Sun Shine on the Supreme 
Court, 36 Hastings Const. L. Q. 161, 168 (2008) (``When the Court 
argues about how the next President is selected, whether a woman can 
choose to have an abortion, whether a detainee may be held in custody 
for the rest of his life, or whether the government will take the 
threat of global warming seriously, the public has a right to be there. 
There is no cogent reason to deny the public a window into the high 
court.''); Bruce G. Peabody, ``Supreme Court TV: Televising the Least 
Accountable Branch?,'' 33 J. Legis. 144, 147-148 (2007) (``This article 
concludes that there are compelling reasons for believing that S. 344 
is indeed constitutional, and consequently, it briefly considers the 
political prospects of the bill and some of the impact the enacted 
measure could have on how we think about judicial reform.''); Audrey 
Maness, Does the First Amendment's ``Right of Access'' Require Court 
Proceedings to be Televised? A Constitutional and Practical Discussion, 
34 Pepp. L. Rev. 123, 183 (2006) (``[T]here are far fewer critiques of 
[televising] appellate proceedings, and the current Senate bill appears 
to have the most viable approach for this segment of court 
proceedings.'').
---------------------------------------------------------------------------
    On November 9, 2007, Senator Specter and Senator Leahy 
wrote to Chief Justice Roberts requesting that he permit 
broadcast radio and television recording of all proceedings in 
which the Court announces its opinions from the bench. Chief 
Justice Roberts replied on December 3, 2007, agreeing to give 
serious thought to the request.
    Chief Justice Roberts repeatedly stated during his 
confirmation hearing that he has no set view on the issue and 
would defer to his colleagues on the Court:

          Senator, it's not something that I have a settled 
        view on and I do think it's something that I would 
        benefit from the views of my colleagues, and I know 
        that some of them have particular views and some may 
        not. I noticed the last time there was a formal 
        response by the Court to a request to televise a 
        particular argument, the Chief Justice referred the 
        matter to the whole Court and then reported back on it.
          I'm also aware that there are--I'm not sure if the 
        right word is experimental or trial efforts going on in 
        some of the courts of appeals, the Federal courts of 
        appeals, to televise arguments there, and I know I've 
        watched them so I appreciate that opportunity. And I 
        don't know yet if there's been an evaluation of how 
        that experiment proceeded, whether the judges thought 
        it went fine, the lawyers or whatever. I just don't 
        know.
          At the Supreme Court level, I do know they've 
        experimented recently in a few cases with releasing the 
        audio tapes immediately after the conclusion of the 
        argument. Again, I've listened to those on occasion, 
        not every case, but selected cases of particular 
        interest. I know that on our court, my court, I'm 
        sorry, on the Court of Appeals for the D.C. Circuit, we 
        broadcast, at least within the courthouse, 
        simultaneously, the oral arguments, so I know the 
        technology is there to do that and I certainly 
        understand the interest and I understand how--I know it 
        was very well received to have the audio tapes 
        immediately available in some of those cases.\16\
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    \16\Confirmation Hearing on the Nomination of John G. Roberts, Jr. 
to be Chief Justice of the Supreme Court of the United States: Hearing 
Before the S. Comm. on the Judiciary, 109th Cong., 239-240 (2005) 
(statement of John G. Roberts, Jr.).

    Justice Stevens has indicated that he is willing to allow 
cameras into the Supreme Court, stating: ``In my view, it's 
worth a try.''\17\
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    \17\Henry Weinstein, Televised High Court Hearings Backed; Public 
Understanding Would Be Enhanced, Stevens Believes, L.A. Times I.3, Jul. 
14, 1989.
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    Justice Scalia is concerned about how cameras in the 
Supreme Court could misinform the public:

          If I thought that cameras in the Supreme Court would 
        really educate the people, I would be all for it. But I 
        think it would miseducate and misinform. Most of the 
        time the Court is dealing with bankruptcy code, the 
        internal revenue code, [the labor law] ERISA--stuff 
        only a lawyer would love. Nobody's going to be watching 
        that gavel-to-gavel except a few C-SPAN junkies. For 
        every one of them, there will be 100,000 people who 
        will see maybe 15-second take-out on the network news, 
        which I guarantee you will be uncharacteristic of what 
        the Supreme Court does.\18\
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    \18\Supreme Court Justice Scalia Gives Civics Lesson, Georgetown 
University Blue and Gray, Oct. 21, 2006, http://explore. 
georgetown.edu/news/ ?ID=19322, (last visited Feb. 7, 2008).
---------------------------------------------------------------------------
          [I]f you send it out on C-SPAN, what will happen is 
        for every one person who sees it on C-SPAN gavel-to-
        gavel so they can really understand what the court is 
        about, what the whole process is, 10,000 will see 15-
        second take-outs on the network news, which, I 
        guarantee you, will be uncharacteristic of what the 
        court does. So I have come to the conclusion that it 
        will misinform the public rather than inform the public 
        to have our proceedings televised.\19\
---------------------------------------------------------------------------
    \19\Charles Lane, From Justices, Static on Televising Proceedings, 
Wash Post (May 2, 2005).

    During his confirmation hearing, Justice Kennedy stated 
---------------------------------------------------------------------------
that he was concerned that the press could cause a distraction:

          My initial reaction is that I think it might make me 
        and my colleagues behave differently than they would 
        otherwise * * * Perhaps they would be accustomed to it 
        after awhile. The press is a part of our environment. 
        We cannot really excise it from the environment * * *. 
        But in the courtroom, I think that the tradition has 
        been that we not have that outside distraction, and I 
        am inclined to say that I would not want them in 
        appellate court chambers.\20\
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    \20\Confirmation Hearing on the Nomination of Anthony M. Kennedy to 
be an Associate Justice of the Supreme Court of the United States: 
Hearings Before the S. Comm. on the Judiciary, 100th Cong., 218-19 
(1987) (statement of Anthony M. Kennedy).

    Justice Kennedy recently cautioned that cameras would work 
---------------------------------------------------------------------------
against the Supreme Court's dynamic:

          But I don't think it's in the best interest of our 
        institution * * *. Our dynamic works. The discussions 
        that the Justices have with the attorneys during oral 
        arguments are a splendid dynamic. If you introduce 
        cameras, it is human nature for me to suspect that one 
        of my colleagues is saying something for a soundbite. 
        Please don't introduce that insidious dynamic into what 
        is now a collegial Court. Our Court works * * *. We 
        teach, by having no cameras, that we are different. We 
        are judged by what we write. We are judged over a much 
        longer term. We're not judged by what we say. But, all 
        in all, I think it would destroy a dynamic that is now 
        really quite a splendid one and I don't think we should 
        take that chance.\21\
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    \21\Hearing of H. Appropriations Subcomm. on Financial Services and 
General Government Fiscal 2008 Appropriations: Supreme Court, 110th 
Cong. (Mar. 8, 2007), available at http://www.cq.com/
display.do?dockey=/cqonline/prod/data/docs/html/transcripts/
congressional/110/congressionaltranscripts110-
[email protected] &metapub;=CQ-
Congtranscripts&searchIndex;=5&seqNum;=108 (last visited Feb. 7, 2008) 
[hereinafter 2008 Supreme Court Appropriations Hearing] (statement of 
Justice Anthony Kennedy).
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          We feel very strongly that we have intimate knowledge 
        of the dynamics and the mood of the Court, and we think 
        that proposals mandating and directing television in 
        our courts is inconsistent with the deference and 
        etiquette that should apply between the branches * * *. 
        We've always taken the position and decided cases that 
        it's not for the Court to tell the Congress how to 
        conduct its proceedings. We feel very strongly that 
        this matter should be left to the courts * * *. We have 
        a dynamic that's different than yours: not better, not 
        worse, but different.\22\
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    \22\Departments of Transportation, Treasury, HUD, the Judiciary, 
District of Columbia, and Independent Agencies Appropriations for 2007: 
Hearing before a Subcomm. of the H. Comm. on Appropriations, 109th 
Cong. 225 (2006) [hereinafter 2007 Independent Agencies Appropriations 
Hearing] (statement of Justice Anthony Kennedy).

    Despite his reservations, Justice Kennedy has stated that 
he thinks televising the Supreme Court's proceedings is 
``inevitable.''\23\
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    \23\James Rubin, Panel Would Admit Cameras, Mikes to Federal 
Courtrooms Cautiously, The Associated Press, Sept. 10, 1990.
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    Justice Souter explained in his confirmation hearing that 
cameras on the Supreme Court pose certain risks, particularly 
if they are distracting:

          If the cameras are unobtrusive and are not making 
        sound that is distracting, that's one thing. There is 
        still a risk * * * Cameras which are obtrusive to oral 
        argument so that they really do distract your 
        attention. That is something that has to be avoided * * 
        *. [However,] [t]here is no question that there is a 
        value there.\24\
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    \24\Confirmation Hearing on the Nomination of David H. Souter to be 
an Associate Justice of the Supreme Court of the United States: Hearing 
Before the S. Comm. on the Judiciary, 101st Cong., (1990) (statement of 
David H. Souter). Some years later, Justice Souter explained that even 
the slightest change in the dynamics of the Supreme Court's oral 
arguments resulting from the presence of cameras would be unacceptable. 
He stated, ``The day you see a camera come into our courtroom it's 
going to roll over my dead body.'' Associated Press, On Cameras in 
Supreme Court, Souter Says ``Over My Dead Body,'' (quoting statement to 
House Appropriations Subcommittee, (Mar. 30, 1996).

    At his confirmation hearing, Justice Thomas explained that 
he did not have objections to televising Court proceedings in a 
---------------------------------------------------------------------------
nondisruptive manner:

          Of course, Senator, at our court, we are an appellate 
        court, and there isn't much activity, other than fairly 
        intricate and detailed oral arguments. But I would have 
        no personal objection--of course, I can't speak for the 
        other judges or for the courts--to cameras being in 
        courts, as long as they were unobtrusive and did not 
        disrupt the proceedings.\25\
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    \25\Confirmation Hearing on the Nomination of Clarence Thomas to be 
an Associate Justice of the Supreme Court of the United States: Hearing 
Before the S. Comm. on the Judiciary, 102d Cong., Pt.1, at 284 (1991) 
(statement of Clarence Thomas).
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          With respect to the court systems, the only 
        reservation that I would have is that it not be 
        disruptive of the exchange between the court and the 
        individuals who appear before the court. It is a 
        different environment, particularly at the appellate 
        level than perhaps at the trial court level, but I have 
        no objection beyond a concern that the cameras in the 
        court room be unobtrusive or as unobtrusive as 
        possible. Of course, that is just my own reaction. I 
        have not looked at that in detail.\26\
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    \26\Id. at 385.
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          I think it would be good for the American public to 
        see what is going on there. I do not know how long they 
        would be interested in what goes on in appellate 
        argument. It tends to be not so--it does not rivet your 
        attention, except maybe perhaps in the cases that have 
        garnered a tremendous amount of publicity, but I see no 
        reason why, beyond that concern, the American people 
        should not have access to the courts.\27\
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    \27\Id. at 385-86.

    Justice Thomas has explained since being on the Supreme 
Court that he worries about the privacy and distortion effects 
---------------------------------------------------------------------------
cameras in the Supreme Court could have:

          The primary point for me has been that regular 
        appearances on TV would mean significant changes in the 
        way my colleagues conduct their lives. My anonymity is 
        already gone. It's already affected the way I conduct 
        my own life. But for some of my colleagues, they've not 
        yet lost that anonymity. I think security is on the 
        foremost of all of our minds now since 9/11. I think 
        they'll certainly become even more significant with 
        more exposure.\28\
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    \28\2008 Supreme Court Appropriations Hearing, supra note 21 
(statement of Clarence Thomas).

    Justice Thomas also stated, ``It runs the risk of 
undermining the manner in which we consider the cases. 
Certainly it will change our proceedings. And I don't think for 
the better.''\29\
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    \29\2007 Independent Agencies Appropriations Hearing, supra note 
22, at 225 (statement of Clarence Thomas).
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    Justice Ginsburg has stated that she believes televising 
proceedings would benefit the public:

          I don't see any problem with having appellate 
        proceedings fully televised. I think it would be good 
        for the public * * *. We have open hearings. If 
        coverage is gavel-to-gavel, I see no problem at all 
        televising proceedings in an appellate court * * * 
        televised appellate proceedings can convey at once a 
        picture not easily drawn in words spoken outside the 
        courtroom. One can also view television proceedings as 
        an extension of the U.S. tradition of open 
        proceedings.\30\
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    \30\Confirmation Hearing on the Nomination of Ruth Bader Ginsburg 
to be Associate Justice of the Supreme Court of the United States: 
Hearing Before the S. Comm. on the Judiciary, 103d Cong., S. Hrg. 103-
482, at 262 and 576 (1993) (statement of Ruth Bader Ginsburg).

    Justice Breyer sees both pros and cons to televising 
---------------------------------------------------------------------------
Supreme Court proceedings:

          I think there are good reasons for it and good 
        reasons against it * * *. The best reason against it * 
        * * is the problem that we could become a symbol since 
        we are the Supreme Court, and if it was in our Court, 
        it would be in every court in the country, criminal 
        cases included.\31\
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    \31\Interview by Brian Lamb, C-SPAN, with Stephen Breyer, Associate 
Justice, Supreme Court of the United States (Dec. 4, 2005) (transcript 
available at http://www.q-and-a.org/Transcript/?ProgramID=1052 (last 
visited Feb. 7, 2008)).

    Justice Samuel Alito previously supported televising 
---------------------------------------------------------------------------
proceedings in the Third Circuit:

          I had the opportunity to deal with this issue 
        actually in relation to my own court a number of years 
        ago. All the courts of appeals were given the authority 
        to allow their oral arguments to be televised if they 
        wanted and we had a debate within our court about 
        whether we would, or whether we should allow television 
        cameras in our courtroom and I argued that we should do 
        it * * *. I will keep an open mind despite the decision 
        I took in the Third Circuit.\32\
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    \32\Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. 
To Be an Associate Justice of the Supreme Court of the United States: 
Hearing Before the S. Comm. on the Judiciary, 109th Cong., at 480-481 
(2006) (statement of Samuel A. Alito, Jr.).

    However, Justice Alito expressed concern that cameras in 
the Supreme Court would change how Justices and lawyers 
---------------------------------------------------------------------------
interact in the courtroom:

          Television coverage of the Supreme Court would not 
        simply let the public see what goes on before that 
        important institution, but would also in some ways 
        change what now goes on * * *. Some lawyers arguing 
        before the court in televised cases would use the 
        occasion to address the television audience for 
        political or other purposes * * *. [T]elevision might 
        well affect the Justices' questions.\33\
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    \33\Samuel A. Alito, Jr., Address before the Association of the 
Federal Bar of New Jersey (Apr. 11, 1996), available at http://
www.law.com/pdf/dc/ alito--amtrak.pdf (last visited Feb. 7, 2008).

    This bill to permit the televising of Supreme Court 
proceedings would require the Supreme Court of the United 
States to permit television coverage of all open sessions of 
the Court. Proceedings would be televised unless the Justices 
decide by majority vote that allowing such coverage in a 
particular case would violate the due process rights of any of 
the parties involved. Allowing broadcast coverage of open 
Supreme Court proceedings will substantially improve public 
awareness and understanding of Court decisions and the law.
    Our democracy works best when our citizens have access to 
their Government. The judiciary lags behind the other branches 
of our Federal Government when it comes to open access to 
public proceedings. Except for rare closed sessions, the 
proceedings of Congress and its committees are open to the 
public and carried live on cable television, radio and webcast. 
The work of executive branch agencies is subject to public 
scrutiny through the Freedom of Information Act, among other 
mechanisms. Since not all Americans can travel and wait in line 
to witness these public proceedings, emerging technology could 
allow the rest of the country to observe the Supreme Court at 
work. This bill extends the tradition of openness to the 
Nation's highest court in order to help all Americans be better 
informed about the important decisions that are made there.

          II. History of the Bill and Committee Consideration

    On November 9, 2005, the committee held a hearing to 
consider whether Federal court proceedings should be televised 
and, in particular, to consider S. 1768, Senator Specter's 
earlier version of this legislation, and S. 829, the Grassley-
Schumer ``Sunshine in the Courtroom Act of 2005.'' Among the 
witnesses favorably disposed toward broadcasting Supreme Court 
proceedings were Peter Irons, coauthor of May It Please the 
Court;\34\ Seth Berlin; Brian Lamb, founder of C-SPAN; Henry 
Schleif of Court TV Networks; and Barbara Cochran of the Radio-
Television News Directors Association and Foundation. Judge Jan 
DuBois of the Eastern District of Pennsylvania, testifying on 
behalf of the Judicial Conference, warned of concerns primarily 
at the trial level, where witnesses may appear uncomfortable 
because of cameras and, thus, might seem less credible to 
jurors.
---------------------------------------------------------------------------
    \34\Guitton & Irons, supra note 4, at 95 (``If public access to 
audio-tapes of oral arguments has given us what William Safire called 
`a fascinating you-are-there experience and an ear to history in the 
making,' I perceive no reason why the American people should not be 
able to see these arguments as well.''); id. at 96 (``I do know, from 
my experience with the Court's audio-tapes, that students, teachers, 
and the American public have benefited from hearing them.'').
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    In the 109th Congress the Judiciary Committee considered 
and reported both S. 1768 and S. 829 on March 30, 2006. The 
Committee voted to report S. 1768 by a tally of 12 yes and 6 
no, and the bill was placed on the Senate Legislative 
Calendar.\35\
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    \35\See 152 Cong. Rec. S2602-01.
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    At the beginning of the 110th Congress, Senator Specter 
reintroduced his bill (S. 344) to permit television coverage of 
the Supreme Court.\36\ This bill is cosponsored by Senators 
Feingold, Schumer, Durbin, Grassley, and Cornyn.
---------------------------------------------------------------------------
    \36\See 153 Cong. Rec. S1257-03.
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    On February 14, 2007, Associate Justice Anthony M. Kennedy 
testified before the Committee concerning several issues 
important to the Federal courts, including cameras in the 
courtroom. He stated that:

          The majority on my Court feel very strongly however, 
        that televising our proceedings would change our 
        collegial dynamic and we hope that this respect that 
        separation of powers and balance of checks and balances 
        implies would persuade you to accept our judgment in 
        this regard. We do not discuss a case before going on 
        the bench. It's a fascinating dynamic * * * This is a 
        dynamic that works. Please don't introduce into the 
        dynamic that I have with my colleagues, the insidious 
        temptation to think that one of my colleagues is trying 
        to get a soundbite for the television. We don't want 
        that * * *. We are judged by what we write * * *. We 
        think it would change our dynamic. We feel it would be 
        unhelpful to us * * *. We have come to the conclusion 
        that it will alter the way in which we hear our cases, 
        the way in which we talk to each other, the way in 
        which we use that precious hour, and we hope that the 
        Senate would defer to us as a coordinate branch of the 
        Government.\37\
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    \37\Hearing of the S. Judiciary Comm. on Judicial Security and 
Independence, 110th Cong. (2007), available at http://www.cq.com/
display.do?dockey=/cqonline/prod/data/docs/html/transcripts/
congressional/110/congressionaltranscripts110-
[email protected]&metapub;=CQ-
CONGTRANSCRIPTS&searchIndex;=0&seqNum;=42,Feb.14,2007 (last visited Feb. 
13, 2008) (statement of Justice Anthony Kennedy).

    The bill (S. 344) was considered by the Committee on the 
Judiciary on December 6, 2007. The Committee voted to report 
the bill To Permit the Televising of Supreme Court Proceedings, 
without amendment, favorably to the Senate. The Committee 
proceeded by rollcall vote as follows:
    Tally: 11 Yes, 8 No
    Yeas (11): Biden (D-DE), Cardin (D-MD), Cornyn (R-TX), 
Durbin (D-IL), Feingold (D-WI), Grassley (R-IA), Kohl (D-WI), 
Leahy (D-VT), Schumer (D-NY), Specter (R-PA), Whitehouse (D-
RI).
    Nays (8): Brownback (R-KS), Coburn (R-OK), Feinstein (D-
CA), Graham (R-SC), Hatch (R-UT), Kennedy (D-MA), Kyl (R-AZ), 
Sessions (R-AL).

              III. Section-by-Section Summary of the Bill

    The legislation consists in its entirety of a single 
section that would require the Supreme Court for the first time 
to allow ``television coverage of all open sessions of the 
Court unless the Court decides, by a vote of the majority of 
Justices, that allowing such coverage in a particular case 
would constitute a violation of the due process rights of one 
or more of the parties before the Court.''

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 344, 
the following estimate and comparison prepared by the Director 
of the Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:
                                                 December 18, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 344, a bill to 
permit the televising of Supreme Court proceedings.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Leigh Angres.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

S. 344--A Bill to Permit the Televising of Supreme Court Proceedings

    S. 344 would require the U.S. Supreme Court to permit 
television coverage of all open sessions, unless a majority of 
justices vote to bar such recordings. The Supreme Court 
currently prohibits recording devices in the courtroom. CBO 
estimates that enacting S. 344 would have no significant impact 
on the federal budget.
    S. 344 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Leigh Angres. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 344.

                             VI. Conclusion

    Increasing public access to open Supreme Court proceedings 
is in the public interest. The Supreme Court has repeatedly 
observed in other contexts that ``[p]eople in an open society 
do not demand infallibility from their institutions, but it is 
difficult for them to accept what they are prohibited from 
observing.''\38\ Permitting people to see the Supreme Court in 
action through the use of television cameras will advance 
public understanding of Supreme Court processes and rulings.
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    \38\Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) 
(quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 
(1980)).
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       VII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 344, as reported, are shown as follows (existing law 
proposed to be omitted is shown in black brackets, new matter 
is printed in italic, and existing law in which no change is 
proposed is shown in roman type):

           *       *       *       *       *       *       *


                    SECTION 1. AMENDMENT TO TITLE 28

    (a) In General.--Chapter 45 of title 28, United States 
Code, is amended by inserting at the end the following:

SEC. 678. TELEVISING SUPREME COURT PROCEEDINGS

    The Supreme Court shall permit television coverage of all 
open sessions of the Court unless the Court decides, by a vote 
of the majority of justices, that allowing such coverage in a 
particular case would constitute a violation of the due process 
rights of 1 or more of the parties before the Court.