Stephen Colbert pointedly asked Justice Stephen Breyer why U.S. Supreme Court proceedings are not recorded for the public.
“The Supreme Court is about the last place in America where I couldn’t bring my camera crew in to shoot what the government is doing, to get video of what the government is doing,” Colbert asked. “Why can’t we watch you if the Supreme Court repeatedly rules that we can be watched by the government?”
Breyer — who appeared Monday night on “The Late Show” to promote his new book, “The Court and the World” — conceded that there were some “very good arguments” in favor of televised hearings.
“I just made one, I made a very good one,” Colbert said. “If you had cameras in the courtroom, you could just put your book on the edge of your desk, and you wouldn’t have to be here right now shaking your lawmaker.”
The justice then launched into a discussion on the risks and benefits of video recordings of Supreme Court business.
“Right there, in just what you’ve said, you’ve given part of the answer,” Breyer said. “You see, I’m in a job where we wear black robes, in part, because we’re speaking for the law. Everybody know we’re human beings (but) the country doesn’t want to know the Constitution according to Breyer or according to O’Connor — they want to know what the answer to this thing is. That’s true of the process.”
The justice said that television could distort the importance of oral arguments, perhaps the most dramatic portion of the process — but one that he said had minimal bearing on the eventual outcome of an individual case.
“The oral argument is about 5 percent of the basis for deciding a case,” Breyer said. “It’s almost all in writing, and the toughest part about this question you’ve posed is this: When I’m deciding a case, I’m deciding it for 315 million people who are not in that courtroom. The rule of law, the rule of interpretation — it applies to everybody.”
“But human beings, correctly and decently, relate to people they see, and they’ll see two lawyers and they’ll see two clients,” he continued. “Will they understand the whole story? Will they understand what we’re doing? Will there be distortions? Now that’s the arguments against you. The argument for you is that it would be a fabulous educational process.”
“And pretty entertaining sometimes, too,” Colbert said.
“Uh, no,” Breyer said.
Watch the entire interview posted online by The Late Show With Stephen Colbert: