Health care case tests high court’s ban on live broadcasts

WASHINGTON - The historic Supreme Court battle over President Obama’s signature health care legislation, with 5 1/2 hours of arguments planned over three days on a matter that affects every American and may influence the 2012 elections, will test the justices’ refusal to allow live broadcasts of their proceedings.

Lawmakers and media organizations are pressing for live television coverage or, failing that, live audio, in a case that will determine whether the government can force people to obtain insurance.

The length of the arguments, scheduled for March 26 to 28, has few precedents in modern court history, and it will be the court’s highest-profile case since the battle between George W. Bush and Al Gore in the 2000 presidential election.


“This is the focusing event and this puts more pressure on the court just because of the high level of interest,’’ said Lawrence Baum, a political science professor at Ohio State University.

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The court has given no indication it will relent on its ban of live broadcasts, and court observers said it is unlikely. Even as Americans have come to expect live coverage of news events, the justices have made their marble courtroom a technology-free zone, barring spectators from using recording devices, telephones, and cameras. The court releases its own audio recordings at the end of the week and has never allowed video.

Justices are considering requests from a dozen lawmakers and more than 30 media organizations seeking live coverage, contending that there is a strong national interest in watching live arguments over an issue that touches everyone and affects the economy and presidential election.

Arguments over the health care law should be broadcast live because the 2010 measure is “the most sweeping thing that’s passed Congress since Medicaid, Social Security, and civil rights,’’ said Senator Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee.

“It will take the mystery out of the court system and help educate people about the judicial branch like they’re educated about Congress now that Congress is televised,’’ Grassley said.


There’s no established procedure for how the court would decide whether to allow live broadcasts. The nine justices probably will make the decision in private, said Richard Davis, a political science professor at Brigham Young University in Provo, Utah, and author of “Justices and Journalists: The US Supreme Court and the Media.’’

If there’s not unanimous agreement, the court probably would defer to members who object, said Barbara Perry, a Supreme Court scholar and professor at the University of Virginia in Charlottesville.

Chief Justice John Roberts said at his 2005 Senate confirmation hearing that he wanted to listen to his colleagues’ views on cameras before taking a position. He did not give his position on live audio. A year later, he said at a judicial conference that some of his colleagues had concerns over television coverage and its affect on the court as an “institution’’ and that “we’re going to be very careful before we do anything that we think might have an adverse impact.’’

Other justices to raise concern about cameras include Stephen Breyer, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. Kennedy and Thomas said at a 2007 House hearing that they feared cameras would change the dynamic among the justices and strip them of their anonymity.

“There’s something sick about making entertainment about real people’s legal problems,’’ Scalia said in a 2005 interview with CNBC. “I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.’’


Courts nationwide have gradually become more open over the years. All 50 states have let television cameras into at least some court proceedings, according to a state-by-state breakdown on the Radio Television Digital News Association’s website. Cameras are allowed in two federal appeals courts, and, on an experimental basis, in 14 trial courts.

C-SPAN, which decades ago began live television coverage of Congress after overcoming lawmakers’ opposition, is among those pressing justices for live video.

Grassley is pushing legislation requiring the court to allow cameras unless a majority of justices conclude that the coverage would violate a party’s rights to due process. Similar measures have not advanced in Congress in the past.