The Letterman justice.

The law, lawyers, and the court.
Dec. 8 2005 4:33 PM

The Letterman Justice

John Roberts is too savvy to keep cameras out of court forever.

It's time.

The chatter is ramping up—as it invariably does, about once a year—that this will be the year TV cameras will finally sail into the Supreme Court. I doubt it. But the chatter is getting louder. The annual reports of Senate bills that would permit the court's oral arguments to be televised are met with heated pro-and- con punditry on the subject. Supreme Court nominee Samuel Alito's opinions on the issue  are suddenly in the news. And the low-grade media fever that always follows several sessions of audio-broadcast arguments has left everyone hankering for more access, more often.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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The arguments for allowing cameras at the high court are not new—in fact I only recently reheated them myself. Cameras would open up a process that is needlessly and deliberately closed and secretive; they would subject the courts to the public scrutiny endured by the two other branches of government; they would give the work of the court serious public legitimacy at a time when judges are increasingly under attack. The arguments against cameras are similarly familiar: They would encourage posturing and pandering by judges and lawyers; they would violate the justices' privacy; they would allow random sound bites of the court's work to be transmitted without the proper context; they would further politicize and thus undermine the court's legitimacy at a time when judges are increasingly under attack.

The problem with all these arguments is that they don't take into account a sea change that has just taken place at the court; a sea change that renders all the above analysis almost completely moot. Sea change, thy name is John Roberts.

The truth is that you cannot attend oral argument these days without being slapped right in the nose by Roberts' youth. Not only is he significantly and markedly younger than almost all his colleagues, he's also clearly a product of the Age of Letterman. Whereas his predecessor, the late Chief Justice William H. Rehnquist, with near-impunity loomed goofy gold stripes onto the sleeves of his judicial robe and sicced his court marshals on unwitting spectators in inappropriate garb, the new chief is already making it clear that such acts of deluded grandeur are just not his style. Roberts has publicly eschewed the gold bars, agreed to prompt audiocasting of certain early oral arguments this term, and, in a few short weeks on the bench, he has also landed some of the best one-liners of the year.

There is, in short, no way that a man who clearly came of age watching television—a man who is doubtless as quick with the remote control as he is with the punch line—can pretend not to understand that television is more entrenched in American life than baseball or apple pie.

Indeed, one of the reasons Roberts fared so brilliantly at his confirmation hearings this fall was that he is so clearly a product of life after television (unlike, for one, the unfortunate Robert Bork). Roberts' total mastery of the medium—from his subtle comic timing to his gestures and demeanor—revealed right away that this was a guy raised on mass media, a guy who has watched his fair share of The Tonight Show. And while there is something almost charming in listening to the older members of the court recoil in horror at the evils of that newfangled gizmo called television (one gets the sense that David Souter still tunes in every night to the Andrews Sisters, from a radio perched high above his fireplace), there would simply be something unseemly in hearing about the evils of television from a guy who doubtless spends hours with his children watching Boohbah.

More important, I suspect John Roberts knows that television is no longer the main technology to be feared; the Internet is. Roberts knows that gossipy blogs and parody sites will inexorably conspire to make the court appear more and more ridiculous. The now-password-protected, possibly defunct Web site Underneath Their Robes had a cult following among Washington, D.C., and court insiders precisely because it stripped away all courts' pomposity and puffery. Imitators will follow, and with each one, the Supreme Court's haughty radio silence will look less and less majestic and more and more absurd. If it ever existed in the first place, the era of public disinterest in the doings of the court is over. People want to know what happens in the marble temple: If they aren't allowed in to watch the real thing, they will enter via snarky anonymous blog. If the high court doesn't make at least some concessions to the public, the American people will get to know its justices and their jobs through parody and politics alone. 

Don't get me wrong. Nothing about John Roberts suggests that he is likely to change all that much about the highly ritualized, frequently grandiose daily business of the court. Clarence Thomas won't be live-blogging case conferences anytime soon, and Ruth Bader Ginsburg won't be podcasting from her chambers. But the decades of justices pretending that television is just some passing fad are over as well.

Will you be able to catch next year's oral arguments live on C-SPAN? I doubt it. We are probably still years away. But in only a matter of weeks, and in the subtlest of ways, John Roberts has brought the court into this century. We now have a chief justice who isn't afraid of C-SPAN, and we will soon have an associate justice who knows how to TiVo. It's going to start to look silly when men who own iPods vigorously object to tape recorders in the gallery. And John Roberts is just too sensible to be silly forever.

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