{"id":2704,"date":"2023-04-18T09:00:55","date_gmt":"2023-04-18T13:00:55","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2704"},"modified":"2025-12-22T15:22:22","modified_gmt":"2025-12-22T19:22:22","slug":"cameras-in-the-high-court-an-empirical-examination-of-support-for-supreme-court-justices-black-owens-johnson-and-wedeking","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/cameras-in-the-high-court-an-empirical-examination-of-support-for-supreme-court-justices-black-owens-johnson-and-wedeking\/","title":{"rendered":"Cameras in the High Court: An Empirical Examination of Support for Supreme Court Justices \u2013 Black, Owens, Johnson, and Wedeking"},"content":{"rendered":"\n
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Cameras in the High Court: An Empirical Examination of Support for Supreme Court Justices<\/h2>\n\n\n\n

Ryan C. Black,*<\/a> Ryan J. Owens,\u2020<\/a> Timothy R. Johnson,\u2021<\/a> and Justin Wedeking\u00a7<\/a><\/strong><\/p>\n\n\n\n

On March 16, 2023, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced legislation that would require the United States Supreme Court to allow cameras in its Courtroom.[1]<\/a> The bill instantly made news.  It provided a rare splash of bipartisan color in an otherwise black and white polarized Washington, D.C. That the bill also might trigger a direct confrontation with the High Court made it even more newsworthy. But while the bill made news, it hardly represented a new<\/em> effort<\/em>. For years, politicians, the media, and interest groups have lobbied and rattled sabers to dragoon the Court into allowing cameras in its Courtroom. Throughout, the Court has remained unshakably opposed.<\/p>\n\n\n\n

In a study we published in Political Behavior<\/em>,[2]<\/a> we discovered that Justices have legitimate reasons to be cautious about placing cameras in their courtroom. There, we examined how people\u2019s exposure to oral argument video footage changed their attitudes about judicial legitimacy. We found that, under certain conditions, cameras can help enhance the Court\u2019s legitimacy. Yet, under other conditions, cameras can damage the Court\u2019s legitimacy. From our perspective, the fact that exposure to a single snippet of footage could immediately impact a person\u2019s general attitudes towards the judiciary was noteworthy. Those results underscore the consequential nature of the proposed legislation.<\/p>\n\n\n\n

But we assert here that it is not just the Court as an institution that cameras will affect. Cameras also could influence what people think about individual Justices. While Justices are not above public scrutiny, it is important to know what influences people\u2019s views of them and how those views might change. That is, how might exposure to video change what people think about the judges they observe? What is more, with recent threats on Justices\u2019 lives, it seems particularly critical to know how the public\u2019s views on Justices may change as a function of cameras. We do so here.<\/p>\n\n\n\n

As with our earlier findings, the results here are mixed. On the one hand, there is some good news for people who want cameras in the Supreme Court. Respondents who watched a neutral exchange between a judge and attorney wound up supporting the judge more than those who listened to that neutral exchange. Additionally, respondents thought no less (nor more) of a judge when they watched him in a contentious exchange with an attorney versus listening to that exact same contentious exchange.<\/p>\n\n\n\n

On the other hand, there is also some worrisome news. Respondents supported the judge significantly less when they watched him engaged in a contentious exchange versus watching him in a neutral exchange. And this effect existed in two different styles of video presentation: a dynamic \u201cZoom-like\u201d format that focused on the individual speaker and a static, wide-angle, shot of the full bench and attorney\u2019s lectern. We say that these results are worrisome because the media may be more likely to disseminate contentious exchanges than neutral exchanges. Viewed on the whole, then, these findings counsel caution and more investigation before the Court adopts cameras.<\/p>\n\n\n\n

We begin by briefly presenting the arguments for and against cameras. We then explain our experiment, how we measured our variables, and then present our results. We conclude with a discussion of what may come to pass if the Court adopts cameras.<\/p>\n\n\n\n

Cameras at the Supreme Court<\/h1>\n\n\n\n

On Thursday March 21, 2013, spectators began forming lines to reserve seats at oral arguments for two highly salient cases: US v. Windsor<\/em> and Hollingsworth v. Perry<\/em>.[3]<\/a> Interestingly, neither of those cases were on the Court\u2019s hearing list for the day. Nor were they on the list for the next day or even the following Monday. The Court heard Hollingsworth<\/em> on Tuesday, March 26th<\/sup>\u2014a full five days later\u2014and Windsor<\/em> on Wednesday, March 27th<\/sup> \u2014a full six days later.<\/p>\n\n\n\n

It is probably a sign of the Court\u2019s institutional strength that so many people waited in line to observe oral argument; but spectator space is limited. There are typically fewer than 100 seats available for those who stand in line to watch the Court.[4]<\/a> These space constraints might be irrelevant if people could watch the Court\u2019s arguments via television or livestream. But they cannot.  The Court repeatedly has denied requests by various entities to place cameras in the courtroom. As a result, many people continue to push for cameras and have lobbied Congress in such efforts.<\/p>\n\n\n\n

Those who support cameras at the High Court believe cameras will make the Court more transparent and accountable to the public. They argue that those features would increase the Court\u2019s legitimacy. Similarly, cameras might educate and inform the public about the Court. People would learn about the Court; and, after all, scholarship shows that to know the Court is to love the Court.[5]<\/a> In this vein, Justice Elena Kagan once said that cameras might \u201callow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers, all of us together.\u201d[6]<\/a><\/p>\n\n\n\n

But others worry about the effects of cameras. Some Justices opine that the media will reduce a complex oral argument to a brief, unrepresentative, video clip that make the Justices look bad. Justice Antonin Scalia expressed this apprehension:<\/p>\n\n\n\n

I am against it [cameras] because I do not believe, as the proponents of television in the Court assert, that the purpose of televising our hearings would be to educate the American people. That\u2019s not what it would end up doing. If I really thought it would end up educating the American people I would be all for it . . . but they wouldn\u2019t see all of [what we do] . . . .[W]hat most of the American people would see would be 30-second, 15-second takeouts from our argument, and those takeouts would not be characteristic of what we do.[7]<\/a><\/p>\n\n\n\n

Other Justices worry that televising oral argument will change the way they and their colleagues behave and thereby lessen the value of oral argument. For example, Chief Justice John Roberts once declared: \u201cI do think that cameras in the Courtroom would impede [the] process . . . . I think that if there were cameras, the lawyers would act differently. I think, frankly, some of my colleagues would act differently and that would affect what we think is a very important and well-functioning part of the decision process.\u201d[8]<\/a> Other Justices echo this concern. Justice Elena Kagan once stated that cameras could cause Justices to \u201cfilter ourselves in ways that would be unfortunate.\u201d[9]<\/a> These Justices are concerned that televising oral argument not only will influence the Court\u2019s legitimacy but also will force Justices to change their behavior so as to avoid public blowback.<\/p>\n\n\n\n

The question remains whether people would in fact change their views of the Justices if they watched them at oral argument. If so, it stands to reason that the Justices themselves might change in response. And so, we sought to investigate whether people\u2019s views of the Justices might change. Given that we already have published a study on how exposure to video might affect the Court\u2019s legitimacy, it seemed that the logical next step would be to examine how the public\u2019s views of the Justices they watch may change. It is to this task that we now turn.<\/p>\n\n\n\n

The Survey Experiment<\/h1>\n\n\n\n

We implemented a survey experiment that exposed respondents to real video clips from two state supreme courts. The experiment relied on 1,475 respondents and used a 2 (video v. audio) x 2 (contentious v. neutral) x 2 (dynamic v. static) plus control design. The treatment exposed individuals to a single 50\u201360 second clip of one of two state supreme court oral argument exchanges between an attorney and a Justice. Some of our respondents listened<\/em> to an oral argument while others watched<\/em> it. Some respondents observed a Justice aggressively<\/em> question an attorney while others observed a polite<\/em> and deliberate exchange between the two. And some respondents saw a dynamic<\/em> camera angle that showed the judge and the attorney in a Zoom-like format while others observed a static<\/em>, wide-angle shot of the full bench from a distance. After observing these oral argument clips, we asked respondents a series of questions about their views of the judges they observed. This included questions about judicial legitimacy, which we have discussed elsewhere,[10]<\/a> as well as questions about the specific judge whose behavior our survey respondents observed.<\/p>\n\n\n\n

Respondents watched or listened to clips from the Minnesota and Indiana supreme courts. We selected these two courts for a handful of reasons. First, we sought to mitigate possible confounders like respondents\u2019 preferences for or against certain accents. The two accents in our sample were quite similar. Therefore, respondent differences will not be a function of accent preferences. Second, we needed videos that were relatively high quality. Few states provided video footage, let alone consistently good footage that we could use. These states were among the best. The states also provided important variation for one of our treatments (camera angle), with Indiana using the dynamic Zoom-style format and Minnesota employing a static, wide-angle approach.[11]<\/a><\/p>\n\n\n\n

We utilized Lucid Theorem to execute an experiment that focused on the effects of watching and listening to portions of an oral argument.[12]<\/a> Though a convenience sample, Lucid samples provide demographic and experimental results that track well with U.S. national benchmarks[13]<\/a>  and are very common in experimental studies like ours.[14]<\/a><\/p>\n\n\n\n

Because we seek to examine how the public\u2019s views on Justices will change because of watching oral argument, we calculate a Judge Support Score <\/em>for each respondent. The score is a composite of answers to three separate questions: (1) Whether the respondent believed the judge behaved professionally, (2) whether the respondent had confidence in the judge\u2019s ability to do his job, and (3) whether the respondent believed the judge would decide future cases fairly. For each of these statements, our participants could say they strongly agreed, somewhat agreed, neither agreed nor disagreed, somewhat disagreed, or strongly disagreed. As an empirical matter, we have good evidence that responses to all three of these questions is driven by a single \u201clatent force,\u201d which allows us to condense them into the single Judge Support <\/em>variable.[15]<\/a> Larger values indicate more support for the judge (e.g., agreement that he behaved professionally) and smaller values indicate less support (e.g., disagreement that he behaved professionally).<\/p>\n\n\n\n

Results<\/h1>\n\n\n\n

As was the case with our original study, the results here are mixed. But taken as a whole, we believe they too counsel caution on this important decision.<\/p>\n\n\n\n

We begin with an analysis of respondent views toward judges after exposure to a neutral exchange between the judge and an attorney. Again, these are clips where a Justice and attorney engaged in a polite exchange over a legal point. Figure 1 displays the effect that the medium (i.e., audio or video) had on average levels of Judge Support<\/em>. These results show that people who watched a neutral exchange from the dynamic angle held more positive views toward the judge than people who listened to that exchange<\/em>. In the left half of the figure, we see that respondents who listened to the neutral exchange in the Indiana court held a Judge Support score of approximately 0.77 but those who watched that neutral exchange held a Judge Support score around 0.81. The difference between these two values is statistically significant. Somewhat surprisingly,[16]<\/a> we observe no differences between listeners and watchers in the neutral Minnesota case. On balance, this is a positive finding for those who want cameras in the Court.<\/p>\n\n\n\n

Interestingly, Figure 2 shows that when we examine the difference between audio and visual in the contentious context, there are no differences in Judge Support among our respondents. Those who listened to the contentious exchange in the Indiana context had a support score of 0.72 while those who watched the contentious exchange had a score of around 0.74\u2014a difference that does not approach standard levels of significance. The results are similar in the Minnesota case. Those who listened to the contentious exchange had a support score of 0.66 while those who watched the contentious exchange had a score of 0.68. These results would seem to support those who want cameras in the court, at least to the extent that they satisfy the \u201cdo not harm\u201d standard.<\/p>\n\n\n\n

Our last analysis is perhaps the most revealing and, from the Justices\u2019 perspective, the most concerning. Here, we examine how respondents differentially react when exposed to a video clip of contentious versus neutral exchanges between a Justice and an attorney. We contend this comparison is revealing because it partially accounts for the likely filtering role that the media would play in a world where cameras are allowed. Editors would showcase contentiousness over neutral content.[17]<\/a><\/p>\n\n\n\n

The question here is whether respondents who are exposed to the contentious video think any differently of the Justices than those exposed to the neutral video. As Figure 3 shows, respondents supported judges significantly less after watching a contentious exchange versus watching a neutral exchange. What is more, this deleterious effect exists in both styles of video presentation that we examined.<\/p>\n\n\n\n

Consider respondents exposed to the Indiana clip. Those who watched the neutral exchange had a support score of 0.81 while those who watched the contentious exchange had a support score of 0.73, a statistically significant difference. While this 10 percent relative decrease is not overwhelming in terms of its substantive magnitude, recall that it obtains after exposure to just a single video clip. Iterative exposures could yield larger impacts.<\/p>\n\n\n\n

Despite a less dramatic and engaging format, the Minnesota format produces similar effects. Respondents who watched a neutral exchange had a support score of 0.81 while those who watched a contentious exchange had a support score of 0.68, a relative decrease of 16 percent that is also statistically significant.<\/p>\n\n\n\n

Additional study is needed to address whether this effect might magnify after seeing multiple clips, but at the very least it suggests that there are potentially harmful consequences that policymakers must consider.[18]<\/a><\/p>\n\n\n\n

Discussion<\/h1>\n\n\n\n

These findings show that scholars need to conduct more research\u2014and communicate their findings to policymakers\u2014before Congress and the Court introduce cameras into the Courtroom.[19]<\/a> The results in Political Behavior<\/em> showed that, under likely conditions, people will support the Court less after watching oral argument. Our results here are similar. There are some conditions under which people think more favorably of judges after watching oral argument. But when we examine the clips that people are likely to see if the Court moves to cameras, we find some immediate and significant decreases in support for judges. And it is important to note that this drop occurs as the result of fairly typical judicial behavior.<\/p>\n\n\n\n

Going beyond the data for a moment, we are wary of the unintended consequences of introducing cameras. As we stated above, one reason to oppose cameras is that Justices might change their behavior at oral argument to avoid providing fodder for clips that might be used to attack them or the Court. Justice Souter told the House of Representatives that he in fact changed his behavior as a state supreme court Justice because of cameras:<\/p>\n\n\n\n

\u201cI can testify from personal experience that the cameras certainly affected my behavior because I knew that there were some questions that I might ask just within the context of a case, which if I asked, would be the excerpt, the soundbite totally out of context on the six o\u2019clock news . . . my fifteen second question would be there . . . and quoted that way it would create a misimpression either about what was going on in the Courtroom, or about me, or about my impartiality, or about the appellate process.\u201d[20]<\/a><\/p>\n\n\n\n

Souter changed his behavior to avoid precisely what our results show may happen: people will think less of the judge when he or she asks hard questions. The judge, in anticipation, will ask fewer questions and pull punches at oral argument. Cameras could shut down or reduce Justice questioning. Reduced Justice questioning will lead to poorer information for the Justices. And poorer information will diminish the quality of the Court\u2019s decisions.<\/p>\n\n\n\n

It is also likely that the Court might decrease the amount of time it devotes to oral argument. Today, oral arguments can last roughly two hours. The petitioner attorney receives two minutes of uninterrupted time to summarize her argument to the Court. She then spends roughly 28 minutes answering any Justice\u2019s questions. After that time concludes, each Justice (in order of seniority) can ask the petitioner follow up questions. When all the Justices have finished asking their follow up questions, the petitioner concludes, and the respondent begins. The respondent also has two minutes of uninterrupted time, 28 minutes to make her case, and then must answer each Justice\u2019s (in order of seniority) follow up questions.<\/p>\n\n\n\n

With all this time, Justices and counsel are bound to say things that others could easily take out of context. To minimize the possibility that Justices would say something the media would report out of context, it is easy to imagine the Justices significantly reducing the amount of time for oral argument or perhaps even deciding more cases on the written briefs alone.<\/p>\n\n\n\n

These two possible outcomes could diminish the quality of the Court\u2019s opinions. Oral argument is an important part of the Court\u2019s decision-making process. As it stands today, Justices use oral argument to persuade each other. They play devil\u2019s advocate to gauge their colleagues\u2019 positions, to begin coalition building, and to begin formulating opinions. They use it to probe for each party\u2019s weaknesses and limiting principles. By engaging the attorneys, Justices can obtain more information about the consequences of possible likely decisions. In fact, 80 percent of the issues raised at oral argument appear for the first time there (i.e., do not appear in the parties\u2019 briefs); and 33 percent of the issues raised uniquely at oral argument make it into the Court’s final opinions.[21]<\/a> All this is to say that oral argument is useful for the Court. But if the Justices believe that usefulness has faded\u2014or that the costs of oral argument outweigh the benefits\u2014they may retreat in a way that reduces the overall quality of their opinions.<\/p>\n\n\n\n

Conclusion<\/h1>\n\n\n\n

When Senators Durbin and Grassley introduced their legislation to require the Court to allow cameras, they highlighted the transparency and accountability cameras would bring to the Court. They might be correct. But what seems clear from our analyses here and elsewhere is that they have overlooked the potential costs associated with cameras. One of those costs concerns the Court\u2019s legitimacy. Another cost concerns how people view the Justices themselves.<\/p>\n\n\n\n

It seems quite likely that the polarization in people\u2019s views towards particular Justices would increase with cameras. Seeing the Justices could exacerbate underlying positive or negative feelings, especially where those Justices engage in contentious exchanges with counsel. There is simply not yet enough data to know whether the putative benefits of cameras would outweigh the costs. Our suggestion, therefore, is to engage in further study of this important topic before undertaking a major change. With so much at stake, caution is the best option.<\/p>\n\n\n\n

*<\/a> Professor of Political Science, Michigan State University; Faculty affiliate, MSU College of Law.<\/p>\n\n\n\n

\u2020<\/a> George C. and Carmella P. Edwards Professor of American Politics, Leon Epstein Faculty Fellow, University of Wisconsin-Madison.<\/p>\n\n\n\n

\u2021<\/a> Horace T. Morse Distinguished Professor of Political Science and Law, University of Minnesota.<\/p>\n\n\n\n