Kennedy Testifies Against Cameras in the Courtroom
USA Today reports:
Supreme Court Justice Anthony Kennedy pleaded with senators Wednesday not to try to force the high court to televise its oral arguments, saying it could undermine substantive legal discussion and lead the justices to speak in “sound bites.”
Kennedy should know. He is the master of putting sound bites into his opinions. In my opinion, of the Justices, he is by far the most sensitive to public opinion, and his opinions reflect it.
Jan Crawford Greenburg says:
Then the hearing turned to cameras in the courtroom, which we all expected. Kennedy is against them, as we all knew. Really against. He even banged on the table. (Might he have been playing to the CSPAN cameras recording the hearing?)
Heh.
Greenburg adds:
But Justice Kennedys passionate plea did get Specter to admit that his legislation would really just be the opinion of Congress. The Court would have the last word.
And we all know what that last word will be. NO.
I think that’s the case. Orin Kerr has said that he thinks Congress could force the Court to include cameras. I suppose it makes for a nice theory. But as I have observed before in a different context,
the thing about power struggles between Congress and the Supreme Court is, the Supreme Court gets to decide them.
And that should end the question.
UPDATE: Thanks to aunursa for catching a typo.
Orin Kerr has said that he thinks the Supreme Court could force the Court to include cameras.
I think you mean “… thinks Congress could force the Court to include cameras.
(Proofreading — another benefit of your loyal readership.)
aunursa (07c305) — 2/15/2007 @ 7:21 amIs it too far-fetched to figure that someday the public, Congress and whomever is President aren’t going to accept the Supreme Court having the last word on a particular issue, that there will come a time and issue where they are not going to accept the Court saying ‘because we said so’?
While I doubt that televising Court proceedings will be that issue, how many divisions does Roberts have at his command if the the President and Congress went and installed cameras notwithstanding the Supreme Court’s objections?
steve sturm (40e5a6) — 2/15/2007 @ 8:07 amThe Supreme Court only gets to decide them because we let them. Our black-robed masters aren’t nearly as smart and superior as they think they are post Wickard v. Filburn–maybe its time we reminded them. Was it Jackson who quipped “he has made his ruling, now let him enforce it?” I think it is past time the supremes were taken down a notch or two….
TheManTheMyth (56001e) — 2/15/2007 @ 8:37 amThe Sup. Ct. gets to decide power struggles with Congress, but they are constrained to do so on a Constitutional basis. The justices do all have some shame, every one of them, to different extents of course.
I really don’t see the basis for finding such a law unconstitutional. Arguments are already open to the public and fully reported. That individual justices might be camera shy or, on the other end, camera hogging media whores doesn’t rise to the level of a serious interest, especially when weighed against the serious interest of fully informing the public on constitutional issues.
If the Sup.Ct. were to strike down such a law, it really would be quite a power grab based on no plausible constitutional grounds that I can think of. The justices might all be tempted to do it, but I hope professionalism and simple shame would keep at least the majority from doing so.
Aplomb (b1076c) — 2/15/2007 @ 9:57 amAplomb: given that they decide on the outcome they want, then look for the rationale to support their decision, isn’t the basis for declaring a law unconstitutional whatever the justices cite as that basis?
steve sturm (40e5a6) — 2/15/2007 @ 10:10 amyou work for us.
assistant devil's advocate (6c0ead) — 2/15/2007 @ 11:20 amwe own you, your bench, your building.
i encourage our elected representatives to televise you so that we can monitor your performance.
now stfu.
I thought it was the executive branch’s job to enforce these things, part of our “balanced” government.
Joshua (75c0f2) — 2/15/2007 @ 11:45 amLike the popular song from the 70s went OH NO ONE KNOWS WHAT GOSE ON BEHIND CLOSED DOORS
krazy kagu (8d6a8f) — 2/15/2007 @ 12:37 pmI was really surprised that Ann Althouse favors televised supreme court hearings, or so she said in a post about a year or so ago.
To me we’re already WAY over the line of invasion in this area and if anything should consider reining it in. I do not see the need for any court proceedings to be televised. They are open to the public after all. If you want to see one, go to the courthouse. Otherwise, you can always hear at least the SCOTUS arguments over at Oyez.
Dwilkers (4f4ebf) — 2/15/2007 @ 12:41 pmSteve Sturm: “given that they decide on the outcome they want, then look for the rationale to support their decision, isn’t the basis for declaring a law unconstitutional whatever the justices cite as that basis?”
I’m not that cynical. They are biased in one way or another just by their temperment or judicial philosophy on pretty much any case. And they would certainly be biased against anything that impacts them directly (especially if they personally didn’t want to go along) or anything that arguably impacts on judicial independence.
But I think it is unfair to say that generally a justice decides first and then tries to build support after the fact. You can tell from reading opinions that they are quite often dragged by laws they think are stupid or precedents they don’t quite agree with to a judicial opinion contrary to their personal policy view.
Yes, sometimes they do forget their jobs and overthrow precedent and laws for no good reason other than they disagree, and it is usually quite clear when they do so because their opinions and reasoning is so weak. You can probably find at least one such opinion from anyone who has ever served on the Court, and some can be fairly accused of doing it disturbingly often. But it isn’t a norm, not even from the worst justice I can think of.
But, unlike say ruling on a split between the circuits on a procedural issue or the meaning of a vague law where they may get lazy and let the bias slip through more, they tend to take Constitutional law quite seriously. They don’t declare acts of Congress unconstitutional lightly, even if they dislike the laws. They know that whatever grounds they declare this particular law unconstitutional might render all sorts of helpful and beneficial laws unconstitutional on similar grounds.
Honestly, I guess, as Patterico opines, there is probably no other area where the Sup.Ct. could simply make up a standard and declare the whole area off-limits to Congress, and get away with it with a clear conscience, than in what could be said to be the internal workings of the Court, including televised hearings.
But I still think the justices would struggle with it and have to base it on a plausible reason other than “No we don’t like this, so it is unconstitutional because, um, we said so. See, er, Marbury v. Madison and Art III.” And I don’t yet see how they could craft a plausible opinion forbidding it.
Aplomb (b1076c) — 2/15/2007 @ 1:28 pmAplomb: given that each of them (with the possible exception of Roberts and Alito, and for them probably only because they haven’t been there that long) have ‘decided first, justified later’, to paraphrase the old joke, we’re no longer arguing about what they do, but only when and how often they do it.
While I’d agree they usually restrain themselves, their true colors come out when the issue is big enough – Bush-v-Gore, Lawrence, Atkins, to cite a few. Maybe I’m cynical, but I believe people, justices included, see want they want to see, and especially when it’s over something rather important. Thus, when, for example, an anti-death penalty justice wants to keep an execution from taking place, you can bet he’s going to find what he wants in precedent, foreign laws, polls or whatever else it is that he wants to cite, just as the conservative justices found a rationale that let them justify their ruling against Gore (who believes they would have ruled the same had the positions been reversed?).
Seeing as cameras in the Court is a relatively trivial matter, I doubt they would go to the mat over this particular issue… but I wouldn’t rule out them viewing Congress as encroaching onto their turf, a precedent they wouldn’t want to let stand.
steve sturm (d3e296) — 2/15/2007 @ 3:41 pm“the thing about power struggles between Congress and the Supreme Court is, the Supreme Court gets to decide them.”
Well, except for power struggles about how much funding they get for things like clerks. The get to keep their salary, but being without a clerk, or secretary would probably suck.
Sebastian Holsclaw (f01cac) — 2/15/2007 @ 4:13 pmCongress has no more authority to compel TV cameras in the Supreme Court than it has to compel the Justices to wear pink tutus and tights instead of black robes. Judges are the first and final word on how they conduct their proceedings. I will even go so far as to say that the Rules Enabling Act and the Federal Rules of Evidence are an unconstitutional abandonment by the Supreme Court of its Article III authority.
nk (06f5d0) — 2/15/2007 @ 4:19 pmSteve Sturm: I think we have reached agreement, afer thinking about it a bit. It’s a pretty trivial matter for the justices to draw a constitutional line here. But it personally affects them, and they could decide to use this triviality (if a law is passed) to draw a line between Arts. II and III.
It wouldn’t be the Court’s most shining moment, but having rethought your and Pat’s original points I guess I’m ready to agree that I wouldn’t be surprised if the Court declared such a law unconstitutional. They wouldn’t be proud to have to do it, and some would probably dissent. But, yeah, a majority could hide their own bias and interest in power in crafting a majority opinion describing an unconstitutional “encroachment” of Congressional power into the workings of the judiciary. It would be easy to cover up whatever intellectual slight of hand took place, because not many people would really care too much. Who would actually watch arguments on C-SPAN anyway? Junkies who already read transcripts or read press reports, that’s who.
It’s funny and kind of sad, when you think of potential “Constitutional crises”, that the one that might be coming next is one on something so minor as recording the visuals, as opposed to merely recording audio or transcribing every word, of arguments in an inarguably public hearing of national legal import.
Aplomb (b1076c) — 2/15/2007 @ 4:47 pmNot historically; or rather, whatever you think of the doctrine of judicial supremacy, not as a practical matter.
Rostrum (39fc86) — 2/16/2007 @ 2:41 amI do, given how egregious the facts of the case were. Admittedly, though, it’s difficult to imagine the positions being reversed. The votes could easily have gone the other way, of course, but I can’t see a conservative lower court pulling the same crap in a Republican’s favor that the Florida Supreme “Court” had in Gore’s.
Xrlq (739fa7) — 2/16/2007 @ 4:16 am“A wet bird never flies at night”
E.A. Holsclaw (c83d20) — 2/26/2007 @ 10:16 pm