The question of televising Supreme Court proceedings has been raised repeatedly over the last few decades. With few exceptions, the justices have universally rejected the idea – citing concerns that judges and lawyers might play for the cameras and that news stories involving short snippets of court hearings could confuse the viewing public. We now know Chief Justice Warren E. Burger’s thoughts on this perennial question, thanks to a series of short oral histories he recorded after he retired in 1986.1
In late 1988, the former Chief Justice was invited to a conference on the state of modern journalism that was attended by media executives. While Burger agreed to speak about the Bicentennial Commission on the Constitution, and how broadcasters should cover events surrounding the bicentennial, he also agreed to take questions from the audience. What follows is Burger’s summary of his comments about televising Supreme Court hearings as well as his more general thoughts on television. His comments have been edited and condensed. As with the newer generation of Justices, Burger’s concerns were grounded on fears that television coverage could distort the public’s understanding of cases before the court. His opinion of the value of televised hearings is not surprising given his general suspicion of the press (the Supreme Court had been beset with a number of leaks in the 1970s) as well as the fact that Chief Justice Burger himself had been struck in the face with a heavy camera by an over-eager journalist during a 1981 visit to Lincoln, Nebraska.
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Chief Justice Burger: We moved into a question-and-answer period and, as I expected, inevitably the question came, “Why are you so adamantly opposed to television in the Supreme Court?” I had anticipated this kind of a question and my response [was], “You are in show business; the courts are not, and especially the Supreme Court is not the place for this kind of exposure.” Then the same questioner referred to the educational value [of televised hearings], and I responded that the educational value was largely a matter of myth.
I asked if the suggestion about television in the courtroom contemplated the entire argument on each side of the case, with all the questions by the judges and answers by the lawyers would be presented. The answer to that was that that was not feasible because there wouldn’t be time, at least as so far as the speaker was concerned. I responded by saying that I had watched a few of the state courts which had already granted television time, and that I had talked to dozens of judges in the courts where it was granted, and that I had yet to find one that had any enthusiasm for the idea of televising the trial, simply because the station which was covering it intended to focus on the exciting parts. The educational value was virtually zero.
When someone pressed me vigorously I said that my judgment after having watched television in the 30-odd years that it has been around and having spent hundreds of days in courtrooms, both as a lawyer and presiding over trials and hearing oral arguments on appeal in the Court of Appeals and in the Supreme Court, that I could never see any net advantage to the public interest or to anyone in having the Supreme Court arguments televised. I had reached this conclusion because of “the infinite capacity of television to distort reality.”
This quite obviously raised the heckles of one or two questioners, and when I was challenged as to what I meant by that, I said, “ Let me give you several examples. In the past two years I have watched more television in any time and more than I really wanted to…[s]ome of the movies that I had seen had excessive violence including cars, automobiles, racing after one another, finally ending up with one car striking one or two others or a whole traffic jam of cars and three or four or more of them going up in flames. But I had never once seen a body carried away from the collisions or a person running away with their clothes on fire or their hair on fire.”
Then I put a question [to my questioners], “What do you in the television field think this kind of performance does to 14, 15 year old youngsters looking forward to getting their driver’s license or just having received them? What kind of a role model do you in the television industry think this gives to young people who, beyond any question according to educators and psychologists, tend to consider the kind of things they see on television as a model for their conduct?”
Then I said, “I have seen as early at 7:30, 8:00, 8:30 in the evening some plays with very interesting bedroom scenes, but that I had never noticed any of these movies showing an illegitimate child or unwanted pregnancy or any of the tragic things that can happen in human existence.” I put the question [to the audience] as to whether or not they, the owners and controllers of broadcasting, using a public resource (that is, the so-called ‘air waves’ under a license from the United States government for which they paid not a dime), if they had ever asked psychologists, school teachers, and parents what they thought about these things.
It was clear to me that I had not made many friends, but I had not taken the trip [to the conference] for that purpose. I think what irritated some of the people the most was my statement that television was essentially show business, notwithstanding the great programs – sometimes by the networks but more often by public television. Naturally, the major three networks would not like that. The other thing they didn’t like was my statement of “the infinite capacity of television to distort reality.” Lately, I have been delighted to see that some parents, housewives, and others are making protests [and] letting advertisers know they will not buy products which are advertised by people if the programs they are supporting include excessive violence or other objectionable factors so far as young people are concerned. What we need is more of that.
1 – These oral histories are in the Warren Burger Papers at the College of William and Mary. This one is published with permission of the Burger Family.