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Friday, March 31, 2006 

Supreme Court TV

A bill left the Senate Judiciary Committee yesterday concerning television cameras in the Supreme Court. There would be a general rule in favor of cameras in the courtroom, unless the Justices felt that the details or nature of a case should preclude coverage. SCOTUS has quite the back and forth discussion going on in their comments section about this bill.

I've always been torn on this issue. I don't think there is anything wrong with the Justices have discretion on how they run their Court. I'm also worried about potential grandstanding and playing to the cameras. On the other hand, I would love to watch the oral arguments. I'm the kind of dork who sat drumming his fingers, waiting for the audio of the Hamdan case to get uploaded. I just find this stuff incredibly interesting. Regardless of how this plays out, I'll probably be fine with it.

I think that there are two separate issues - whether the cameras roll in, and who gets to decide. I think the Justices should decide, and my personal opinion is that Souter's opinion should carry the day: no cameras. It's not that I wouldn't like to watch - I would, and I know a lot of other legal types would too. But just because a few SCOTUS geeks - me included - would have something new to distract them from work isn't a good argument for cameras - it's barely an argument at all. All in all, I think there are too many potential harms outweighed by too few potentential benefits.

Wasn't it Souter who made the "over my dead body" comment about cameras? That's probably the most animated he's been in 20 years.

Deep down, I have this image of the Court that is shrouded in mystery. And I love that. I love the fact that I haven't seen an argument yet, and am totally psyched up for the chance to do so in the near future. Something about the apparent secrecy of the Court adds to its coolness image for me.

I'm also a little concerned about grandstanding. This isn't so much an issue with the SC bar, because I think that in general they are a very profession bunch. I'm worried about some of the state attorney generals. We've had some real gems in WI in that office (including our current governor) and I wouldn't put it past them to use their Court appearances to further their political careers.

Yeah, it isn't often I cheer for Justice Souter. ;) I think the preening for the cameras thing is certainly a valid point; in fact, although I regard this as a separate issue, if such things were up to me then I would go even further than rejecting cameras in the Supreme Court and throw them out of Congressional Committees, the Senate Judiciary Committee in particular.

But in any event, I think that the two main things that trouble me most are these. First, the concern Our Hero has raised, which is misrepresentation of what happens at the court which will inevitably follow people watching only brief snippets and soundbites rather than the full argument. I don't think that audio should be released the same day for the same reason; it should follow with the transcript of the argument, which should itself issue with the opinion.

Second, and more importantly, I dispute the notion that the Court performs a function which requires cameras. Personally, for many different reasons, I think C-SPAN is a failed experiment, but one can certainly understand why it might be a good idea to put cameras into the legislative branch of government. The impulse is understandable, because the people have an obvious interest in knowing what laws their elected representatives are promulgating in their name, and how they conduct themselves. But why would that apply to a court of law? As I see it, the presence of C-SPAN in the court will further encourage the country - and certain impressionable Justices - to think of the Court as being another branch of government not essentially different to Congress. If the court is performing its function the way it should, there should be no need for cameras.

I don't agree entirely that the Court is shrouded in secrecy, but I do agree that there is a shroud around it. Anyone can attend an oral argument, but to do so requires one to make a certain amount of effort; if I can be bothered to drive ten hours from Indiana to D.C., you can bet I'm going to stay and pay attention to what's happening. That's the way the court should be appreciated. But if people can channel-surf and catch five minutes of rapier-sharp wit from Our Fearless Leader (or even just some goodl old-fashioned grenadiering from Our Hero) before tuning out for Souter's boring (but often pretty important) questions, they will do so, and it will not help people think better of the Court.

Of course, I may just be a stubborn Burkeian who thinks that momentous change to tradition should be rejected in the absence of a compelling argument for it rather than embraced in the absence of a compelling argument against it. ;)

If the change ever does happen, I want the Court to decide it, not Congress. I think that Congress feels embarrassed by itself sometimes. Look at the confirmation hearings. How horrible did most of the Senators look? They looked like morons reading from scripts, trying to interrogate men with much bigger brains. I think a lot of Biden's calls for "reforming the hearings" came from his seeing all the press coverage of his stupidity. How many questions did he get out in half an hour, five?

Our legislators are probably jealous that the Justices get to do their jobs with the cameras on them. Sure, the Congressmen love to have media attention. But they hate being shown up on national TV. And that's exactly what happened during the last two confirmation hearings. I think some of this is motivated by spite.

I think Kennedy just put the final nail in the coffin.


Of all the Justices, I think Kennedy was the one who was most likely to say yes to cameras, but he not only closed the door fairly firmly to cameras, period, but absolutely slammed the door shut on Congress imposing cameras. By my count, Scalia, Thomas, Kennedy and Souter say no, Breyer's concerns are a practical no, and both Alito and our Fearless Leader strongly hinted that they would say no during their confirmation hearings.

That was definitely the most interesting part of the subcommittee hearing. I get the feeling that the only way cameras will ever enter the Court is if it is a unanimous decision by the Justices. They have such a close working relationship together that 100% approval on something this major would be necessary.

Looks like Congress can kick and scream about this for a while...

Indeed, it seems possible that right now, there are enough Justices strongly opposed to the idea to deny the court a quorum by refusing to participate in televised oral arguments:

"Six Members of the Court constitute a quorum . . . In the absence of a quorum on any day appointed for holding a session of the Court, the Justices attending — or if no Justice is present, the Clerk or a Deputy Clerk—may announce that the Court will not meet until there is a quorum.(Supreme Court Rule 4(2)).

It would be a drastic step, but I think Souter and Scalia at least are intractably hostile to the idea, and now Thomas and Kennedy have all-but signed on to that dissent.

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