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Soccer, or fútbol as true fans would call it, is similar to debate. In order to win a soccer game, you have to score goals. How do you score goals? By taking a risk and going on offense. In debate, you have to take risks and argue the big picture issues to go on offense. Sitting back and playing defense by arguing inherency and other such arguments will get you the same result as Tottenham got playing defensively against Manchester United, a loss that wasn’t fun for anyone involved. So let’s examine one case that will probably come up at least once this year and understand why arguing on the offensive is preferable to arguing on the defensive.

Cameras In the Supreme Court: Estes v. Texas And Other Issues

The core theory or belief behind any attempt to change the openness of a process is as follows: Transparency leads to accountability and accountability leads to change. Of course there are sub-points and warrants between each leap, but the general concept is the same.

The case to put cameras in the Supreme Court is just another application of the same theory. In fact, the Congressional Research Service noted, “The principle of government transparency was highlighted during the Senate hearing… Many advocates, including Senate Judiciary Chairman Specter (sponsor of S. 1768 and cosponsor of S. 829) and Senator Grassley, have quoted former Justice Louis Brandeis’s dictum that “sunshine is the best disinfectant.”

Now, the purpose of this post isn’t to go on about government transparency. You could easily find enough of that on any pundit’s website. Instead, we’re going to look at court precedent regarding cameras, other strategies against cameras in the Supreme Court, and, finally, why one of the strategies is lesser than the others.

A Case That Will Live in Infamy (Not Really)

In 1965, the Supreme Court heard the case of Estes v. Texas. The petitioner, which in court language means the party that appeals/petitions the case to the court, had been indicted by a grand jury in Texas for swindling. However, significant pre-trial publicity gave the trial national notoriety.

The petitioner, on the day of the trial, made a motion to prevent, “all telecasting, radio broadcasting, and news photography. The hearing, conducted in the presence of some trial witnesses and veniremen later released, was carried live on television and radio, and news photography was permitted.” Some of the jurors who were selected later at the trial had seen or heard the broadcasts. The State denied the petitioner’s motion but live telecasting was prohibited during most of the trial, except for the State’s opening and closing statements and the return of the verdict by the jury.

The petitioner claimed the televising and broadcasting of the trial violated due process under the 14th amendment. The trail court and circuit court rejected the petitioner’s claim. However, the Supreme Court held, in a 5-4 decision, “The televising over petitioner’s objections of the courtroom proceedings of petitioner’s criminal trial, in which there was widespread public interest, was inherently invalid as infringing the fundamental right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment.”

Consequently, the Court’s rationale for the decision came from past precedent. Two cases specifically stand out: Tumey v. Ohio and Offutt v. United States.

1. In Offutt v. United States, Justice Felix Frankfurter delivered the opinion of the court that, “Therefore, justice must satisfy the appearance of justice.” That phrase was used in the Supreme Court’s decision in In re Murchison, where Justice Black delivered the opinion of the court stating, “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness… But to perform its high function in the best way “justice must satisfy the appearance of justice.”

2. In Tumey v. Ohio, where Chief Justice Taft delivered the opinion of the court, Taft stated, “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”

You might be wondering how any of this applies to the action of putting cameras in the Supreme Court. The Court’s precedent may, in theory, view the use of cameras in the Supreme Court as a violation of a petitioner’s right to due process. The two concepts the Estes decision was based on, justice satisfying the appearance of justice and preventing possible temptations to not judge in an impartial manner, could lead to such an outcome. If the petitioner in the case could demonstrate and prove cameras would increase the justices’ tendencies to rule based on public desire as opposed to constitutional merit, then the Court would most likely rule in the manner described above.

Therefore, on negative, you could argue there is an inherent, structural barrier to the plan; otherwise known as structural inherency. However, is structural inherency really the way to argue against cameras in the Supreme Court? In order to answer that question, another must be answered first. What arguments are going to be given up in order to argue inherency?

Find out in part two!

Lorraine H. Tong, “Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues,” Congressional Research Service, https://www.fas.org/sgp/crs/secrecy/RL33706.pdf (accessed August 11, 2015).

Justia, “Estes v. Texas,” Justia U.S. Supreme Court, https://supreme.justia.com/cases/federal/us/381/532/case.html (accessed August 11, 2015).

Clark, Warren, Douglas, Harlan and Goldberg were in the majority. Stewart, Black, Brennan, and White were dissenting.

Justia, “Estes v. Texas,” Justia U.S. Supreme Court, https://supreme.justia.com/cases/federal/us/381/532/case.html (accessed August 11, 2015).

Felix Frankfurter, “Offutt v. United States,” Google Scholar, https://scholar.google.com/scholar_case?case=15348771758421925949&hl=en&as_sdt=6&as_vis=1&oi=scholar (accessed August 11, 2015).

William Howard Taft, “Tumey v. Ohio,” Google Scholar, https://scholar.google.com/scholar_case?case=15069922377115925017&hl=en&as_sdt=6&as_vis=1&oi=scholar (accessed August 11, 2015).

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