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Peter Scheer

Peter Scheer

Posted April 11, 2009 | 05:12 AM (EST)

US Supreme Court Should Get Over Its Camera Allergy


The California Supreme Court's hearing last week in the Prop 8 case -- broadcast live over the internet via streaming video -- erased any doubt about the wisdom of allowing cameras into the nation's courts.

Let's hope US Supreme Court Justices David Souter, Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas were watching the oral arguments on Prop 8's constitutional amendment banning same-sex marriage. They are the camera-allergic justices who have publicly stated their opposition to televising the US Supreme Court's oral arguments (and other public proceedings).

The video coverage of the Prop 8 proceeding is not beneficial merely because it is educational -- although it certainly was educationally eye-opening to anyone who has not attended a Supreme Court argument. The real importance of broad public access to the Prop 8 arguments is that it will enhance the legitimacy of the Court's eventual decision in a politically-charged and divisive case.

Viewers on both sides of Prop 8 saw the California Supreme Court justices struggling to make sense of the parties' positions in the context of a continuum of legal precedent. While they may have expected to see a political debate, instead they saw thoughtful and well-informed judges asking questions of the lawyers to test the applicability of general legal principles to the specifics of this case. It is an exercise that, among other things, highlights the complexity of the legal issues.

If, as seems likely from the justices' questions, the Court upholds Prop 8 (while leaving intact the marriages held prior to the November election), Prop 8's opponents will -- because of the video coverage -- be more inclined to respect that outcome. They will disagree with it; they will organize to reverse it through the political process; but they are not likely to believe in large numbers that they have been cheated by the judicial system.

Legitimacy, the most valuable asset of any court, is diminished by judicial secrecy and enhanced by openness. Justices of the US Supreme Court, take note.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. www.cfac.org