Last month, Tony Mauro published a column in the National Law Journal (found here), highlighting the results of a public-opinion poll that researchers at Farleigh Dickinson University conducted to determine the level of support for televising proceedings at the Supreme Court. Sixty-one percent of Americans, the poll found, believed that televising the Court’s proceedings would be “good for democracy.” And that result, compared to the twenty-six percent of respondents who thought television would “undermine the authority and dignity of the court,” suggested that the researchers had found overwhelming public support for the idea — indeed, bipartisan support. For seventy-one percent of those who identified themselves as liberals favored the idea, and fifty-five percent of self-identifying conservatives did the same.
The readers of this blog are undoubtedly familiar with the essential contours of the debate over televising the Court’s proceedings. Proponents argue that cameras would provide the public with greater access to an important public institution. They suggest following the mold of what C-SPAN has done for public debates and committee hearings in Congress. Opponents, essentially, believe that what might have worked for Congress will not work for the Court. They contend that cameras will alter the dynamic in the courtroom, allowing participants to play to a larger audience in a way that would diminish the value of oral arguments. Litigants may address the Court with less candor, preferring to speak in platitudes designed for the evening news, and the justices themselves may be less willing to ask pointed questions, lest they be misconstrued by a larger audience.
What is familiar to the readers of this blog, however, is likely foreign to most of the public. And that makes me question the probity of a poll such as this. If the crux of the debate is that the Court is somehow different than Congress, and in a way that will damage its integrity if its proceedings are televised, why are polls of random Americans, who likely do not appreciate those differences, helpful? Asking an uniformed person a question yields an uninformed answer.
The data from this poll are illustrative. Researchers asked the respondents whether they previously had heard or read anything about permitting cameras at the Court: Forty-eight percent had heard “nothing at all,” and the knowledge of an additional twenty-eight percent was nearly as scant, having heard “just a little.” In other words, a full seventy-six percent of those polled knew little, if anything at all, about the debate.
It’s impossible to conclude from all this that the poll’s outcome would be any different if more of the respondents had a greater appreciation of the issues (and no true statistician would venture to do so). To be sure, research such as this does have its place; but it has its limitations also.
Permit me to suggest, therefore, that further polls might take a more insightful tack by using a not-so-random population. (The random sample here was selected from a list of land-line telephone numbers generated by computerized random-digit dialing, proof of how far we have come since the days when a similar method produced a biased sample predicting Dewey’s victory over Truman.) For example, one might use a survey of all those admitted to practice before the Court or (since I suspect that that population is skewed by the many that seek admission to the Court without ever practicing there) of all those that have argued or briefed cases before the Court.
The Court is different from Congress in at least one important respect: It decides cases involving the rights and dispositions of individual litigants. And before this debate proceeds much further, it might be more instructive to hear what those litigants (or their representatives) have to say.
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