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Can Congress Force the Supreme Court to Televise Proceedings?:
Robert Barnes has an interesting article in the Washington Post about proposals for federal legislation to require Supreme Court arguments to be televised. (LvHB) I gather some readers will wonder, can Congress do that? Can they force the Supreme Court to allow cameras in the courtroom?

  This isn't at all my area, so what follows is just amateurish speculation. But off the top of my head I would think the answer is clearly "yes." Congress has a great deal of control over how the Court operates. For example, Congress determines the number of Justices, see 28 U.S.C. § 1, when the Term opens, 28 U.S.C. § 2, and allowances for law clerks, 28 U.S.C. § 675. Congress also requires that the Court's opinions must be bound togther and published as volumes of the United States Reports "as soon as practicable after rendition." 28 U.S.C.A. § 411. As far as I know, none of these sorts of regulations have ever been suggested to violate the Constitution.

  The only counterargument I can think of is that perhaps control over broadcasting proceedings is somehow part of "the judicial power." The Constitution explicitly states that "the Judicial Power of the United States, shall be vested in one supreme Court," Article III, Section 1, and if the Constitution vests the judicial power in the Court then Congress cannot take it away. But I have always understood the notion of "judicial power" to mean the power to decide cases and controversies, Cf. Murray' Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), not the power to hear oral arguments in a setting that is more or less public.

  As I said, though, this isn't my area; I hope those who work in this area can chime in.

  UPDATE: Marty Lederman weighs in here.
Kovarsky (mail):

It strikes me that there could be a due process objection asserted by a litigant. That doesn't speak to whether the Court may exclude cameras on its own prerogative, but it does speak to whether they would ultimately be allowed. This isn't my cup either, so I don't know way due process rights on appeal play out in the jurisprudence.
2.12.2007 12:50am
Crunchy Frog:
I think that Congress would rue the day it shoved cameras down the Court's throat...
2.12.2007 12:53am
e:
Apologies for not directly answering the question, but Congress should figure out how to make potential viewers read the briefs before forcing cameras in to offer a skin deep view of the decision-making process. Catering to lazy media and their consumers shouldn't be on the agenda.

But maybe concern about grandstanding is overblown and no one will really watch.
2.12.2007 12:54am
Pete Nelson (mail):
I'm no lawyer, so forgive my perhaps naive question, but if Congress passed a law requiring the Supreme Court to televise its proceedings, and the Supreme Court didn't like the idea, couldn't the Court just declare the law unconstitutional, saying it violates Section III or some such?

It seems like it would be extremely easy for the Court to get around a law like that. What could Congress do about it, other than pass an amendment to the Constition - which would probably take years?
2.12.2007 1:07am
Kovarsky (mail):
to paraphrase the chief: "justice souter says 'over my dead body.' and we all like justice souter."
2.12.2007 1:18am
Jason J. (mail):
if Congress passed a law requiring the Supreme Court to televise its proceedings, and the Supreme Court didn't like the idea, couldn't the Court just declare the law unconstitutional, saying it violates Section III or some such?

You don't have much faith in the integrity of the Justices, do you?


I don't quite understand what the big deal about cameras is. The whole thing is a matter of public record anyway, right? And the only people who would watch it are reporters and lawyers, except for the occasional sound bite that ends up on the nightly news.

However, it does seem like Congress would have the power to require it if they liked. At least, it would be very, very weird if Congress had the power to determine the number of Justices on the Court, the kinds of cases the Court can hear, the power to impeach the Justices, etc., but they couldn't mandate that their proceedings be on TV.
2.12.2007 1:37am
Cathy (mail) (www):
I'm not really up on all this either, but doesn't the Supreme Court have a lot of discretion over procedural issues? If so, could cameras be construed as procedural and thus within the Court's purview?
2.12.2007 1:54am
Charlie (Colorado) (mail):
Jason, I don't think it requires any conclusion about the integrity of the Justices. Say such a law is passed, and gthe SCOTUS refuses to comply. Then theyn have to figure out who has standing, and pursue the case. God knows I'm not a lawyer, but it wouldn't seem like you could present it to an inferior Court, tghey wouldn't have jurisdiction. So it relatively rapidly rises to the SCOTUS, who (one presumes) would have thought about whether it was within their power to refuse before they nrefused. They then perfectly reasonably confirm their decision.

Congrefs could certainly try to press it, by say trying to pack the Court or by cutting funding until the Court complies, but that would be a constitutional crisis; that seems a bit extreme as a way to get TV into the Court.
2.12.2007 2:00am
Lev:
I haven't paid that much attention to the issue, but how has the issue of TV cameras in DCts and AppCts been handled? Edict from the SCt? Edict/rules of procedure from a Judicial Conference approved by Congress? Other?

Since oral hearings are taped and rebroadcast using the audio spectrum, should videotaping and rebroadcast using the EM spectrum be any different?

Does Souter pick his nose or something?
2.12.2007 2:16am
Roger Schlafly (www):
Souter once said that he was sometimes televised in state court, but every time he saw himself on the evening news he looked like an idiot.
2.12.2007 2:42am
A. Zarkov (mail):
"For example, Congress determines the number of Justices..."

Can Congress make the number of Justices zero? Zero is a number.
2.12.2007 2:59am
jgshapiro (mail):
Charlie:

Wouldn't every interested spectator who otherwise couldn't attend oral argument have standing?

Why wouldn't a lower court have jurisdiction to hear the case? It might be awkward for them, but there's nothing in the Constitution that says that laws directly affecting the Supreme Court have to be resolved there initially through the Court's original jurisdiction. On a related point, wouldn't the Court have to recuse itself from the appeal?

How can it be a due process issue for a litigant to have its argument televised, when its not a due process issue to have people attend in person or to have taped audio broadcasts released? Is grandstanding more likely with live television than with tape delayed audio? How do you prove that? Is it a due process violation for state supreme (and lower) courts to broadcast their arguments? If not, how can it be a due process issue for SCOTUS?
2.12.2007 3:08am
Kovarsky (mail):
jgshapiro,

i assume the press would have standing to sue.
2.12.2007 3:10am
logicnazi (mail) (www):
I find the examples above pretty disanalogous to requiring cameras in court. The examples given only relate to congress deciding when the court should start conducting it's business or what happens to the decisions after the court has finished conducting it's business. Neither example show that congress can affect the actual proceedings during which the court does it's business.

I mean do people think it would be constitutional for congress to require the supreme court to conduct it's hearings in the nude? Or what about requiring the justices to wear clown outfits while they sat? Unlikely perhaps but I could see a peeved congress trying to undermine the court's authority in such a manner. I agree these aren't spot on analogies either but assuming you answered no to them I think it undermines the power of the earlier ones.

So a bit closer to the actual issue could congress require the courts to allow one of those near-infrared type cameras that lets you see through clothing? What about an intimidating presence of soldiers with assault rifles that had to be present whenever the court was in session.

It's at least my (inexpert) intuition that congress could not require the court to accommodate something that would be actually disruptive, either directly or through it's psychological effect. Yet if we accept that point it means that congress could only force TV cameras on the court if in fact one accepts the argument that they would not change the nature of the proceedings, an argument that the court itself must not buy or they would presumably allow them already. Moreover, it seems as a practical matter we must leave the decision of what would and wouldn't be disruptive up to the court.
2.12.2007 4:43am
M. Lederman (mail):
Orin: The question is actually parallel to the Commander-in-Chief questions that we've been discussing. It's not sufficient to ask whether decisions as to television are "within" the "judicial power" mentioned in Article III. Presumably they are -- the Court has vast constitutional authorities to set its own rules, especially for procedure and the operation of the courtroom, just as it has constitutional authority to establish rules of evidence and procedure for the rest of the federal judiciary. But the difficult question is the extent to which that constitutional power is defeasible by statute. (By analogy, the President can engage in electronic surveillance for foreign national security purposes in absence of statute, but that doesn't answer whether FISA is a permissible limit on that authority.)

Usually, of course, the answer is "yes, statutes control." Congress can establish rules of, e.g., procedure and evidence that can and do trump whatever rules the Court had established pursuant to its Article III power.

But there is some, vaguely defined "core" of judicial power that is indefeasible by statute -- some things that are presumably so central to the very functioning of the Court, or so constitutive of what it means to exercise the judicial power -- that the judiciary itself must be afforded unbounded disretion to make the call. (In Loving, the Court uses the term "central prerogatives.") That's the lesson of Plaut, anyway. (And also Klein, to the extent it can be read to suggest that Congress cannot establish certain irrebuttable presumptions as rules of evidence.)

So, for instance, there is currently an academic (in both senses of the word) debate raging about whether Congress could regulate the Court's use of stare decisis. Similarly, what about rules for length or structure of briefs to the Court? Length of oral argument? Dissents in opinions? Procedures at the Court's conferences? Citations to international law? Etc.

So what about Court transparency rules, as in the television example? My view would be that it's well within Congress's power, just as Congress has broad authorities to require Executive branch transparency. But it's highly contested, of course, and it's not clear to me how one would best resolve the debate, which would probably turn on which historical examples of statutory Court rules one thought most analogous.
2.12.2007 5:03am
PersonFromPorlock:
I daresay that if the Justices were opposed to it, a brief mention to, say, the Speaker of the House concerning what cases about Congress the Court was willing to hear would have some effect.
2.12.2007 7:23am
Blasphemer:
In the olden days, the rationale that was often given for barring cameras from the courtroom is that cameras (and their operators) were obtrusive would "disrupt" the proceedings.

Today, cameras can be so small, that they could be barely visible.

The Supreme Court's proceedings are supposed to be open to the public.

The Court's refusal to allow extremely tiny cameras to broadcast their proceedings to the public just shows how much contempt the Supreme Court has for the principle that its proceedings be public.
2.12.2007 8:01am
Blasphemer:
Wouldn't it be constitutional for Congress to pass a bill saying that the compensation of U.S. Supreme Court Justices will NEVER increase as long as cameras are not allowed into the courtroom? If there were such a law, some years of inflation would result in the Supreme Court allowing cameras. Their opposition has a price.
2.12.2007 8:06am
A. Zarkov (mail):
“Wouldn't it be constitutional for Congress to pass a bill saying that the compensation of U.S. Supreme Court Justices will NEVER increase …”

That wouldn’t work because the court would invoke section 1 of Article III claiming that inflation had effectively diminished their compensation. One state court (I think Michigan) did exactly that. They ordered the state treasurer (without a hearing) to increase their salaries or suffer contempt. I don’t know how the issue was eventually resolved.
2.12.2007 8:21am
AppSocRes (mail):
Blasphemer has a point. In fact, Congress could -- perfectly within the bounds of a clear reading of the Constitution -- deny any pay to the Justices until cameras were installed. In the very earliest days of the Supreme Court, Congress actually forbade the Court from meeting for a year or two and the Court acquiesced without a grumble. Unfortunately, I can't remember the details. It was either during the Presidency of Adams or Jefferson.
2.12.2007 8:27am
bradleyjg:
The Justices should form a union, or better yet join one of the existing government unions.

Could you imagine a work slowdown at the SCOTUS level. "I see you want us to fast track this appeal concerning the 2000 presidential election - we're very sorry but it doesn't look like we'll be able to get to it until sometime in 2003. Good luck figuring out what to do meanwhile."

---

On a more serious note, is there any statory command that oral arguments be held at all?
2.12.2007 8:27am
Justin (mail):
Peter Nelson is right, functionally this is a reverse-political question that is up to the Supreme Court and is in a practical (though not a technical) sense "non-justiciable" by Congress.

However, since from what I can tell Souter is the main holdout (everyone else, though not in love with the idea, is not dead set against it), I assume the Supreme Court would probably submit if Congress passed such a law and the President signed the law. This is particularly true now that Roberts, rather than Rehnquist, is Chief Justice.
2.12.2007 8:32am
Justin (mail):
Kovarsky, if Congress passed such a law and the Supreme Court did not subsequently obey the law, I would assume that suing would probably be a waste of time. I'm pretty sure how the Supreme Court would thus answer the Article III question.
2.12.2007 8:33am
Justin (mail):
The Justices should form a union, or better yet join one of the existing government unions.

----

I'd love them to form a union. Maybe they wouldn't have a constitutional theory of labor law that was more befitting of an oligarchy.
2.12.2007 8:38am
loki13 (mail):
M. Lederman,

Really good analysis. I think the anlogy to transparency issues re: the executive branch is especially apt. Do you have any other case cites/law review cites to SOP issues between the SCt and Congress, esp. issues involving their "central prerogatives"?
2.12.2007 8:40am
SimonD (www):
Isn't it an incident of the role of the judge that s/he has ultimate control over the courtroom? If it was understood in 1789 that the judge was basically king of his little mountain during proceedings, then surely there is a good reason to think that it's inherent in the nature of the judicial power. And even if it isn't, it seems inimical to the separation of powers to think that one branch could force another branch to do something, absent invocation of some higher authority.
2.12.2007 8:45am
SimonD (www):
Roger Schlafly:
Souter once said that he was sometimes televised in state court, but every time he saw himself on the evening news he looked like an idiot.
Quite possibly because the evening news carefully picked the footage that made him look like an idiot. The media is not a dispassionate and carefully neutral business; it will pick and choose the footage that supports its editorial line. Moreover, go to YouTube and search for "Scalia"; you will find at least a couple of snippets from recent speeches that have been taken out of context and are described (and carefully edited) as showing Scalia saying completely the opposite to what he's actually saying, in context. Televise oral arguments, and you're going to get a lot more of that. The idea that televising the court will inform the public seems shockingly naive, and I'd add that this isn't even a matter of first impression. The threshold question is, on balance, has C-SPAN helped and improved the quality of Congress' work? (If you think it has, you evidently missed the Roberts/Alito hearings). And if you don't think it has, why would you assume it would work any better in the court?

bradleyjg
On a more serious note, is there any statory command that oral arguments be held at all?
That'd be the kicker, wouldn't it? "Okay, we accept that you, the Congress, can require us to allow cameras into oral aguments. On an unrelated matter, we have decided that henceforth, all cases will be decided on written briefs alone."
2.12.2007 8:55am
Ted M.:
Orin,

I'm not sure that the argument, "none of these sorts of regulations have ever been suggested to violate the Constitution," really gets you very far. Until Apprendi, who knew that a judicial sentence enhancement was unconstitutional? Until Booker, who knew that the sentencing guidelines were unconstitutional? For that matter, before Griswold, who knew there was a right to privacy in the Constitution?

As for Congress's power, what Article I power is cameras in the courtroom necessary and proper to carry into execution? Certainly not the power to constitute tribunals inferior to the Supreme Court. It may be true that the Supreme Court has traditionally adhered to Congress's regulations, but there is nothing in the Constitution that requires it to do so.
2.12.2007 8:56am
anonVCfan:
The Constitution explicitly states that "the Judicial Power of the United States, shall be vested in one supreme Court," Article III, Section 1, and if the Constitution vests the judicial power in the Court then Congress cannot take it away.

Is this the "Unitary Judiciary" theory? This wasn't given out at the last FedSoc convention, unless it was explained in code.
2.12.2007 9:36am
madisonian (mail):
Marty, as usual, is the one asking the right questions. The point is that there are certain matters so integral to the ability of a particular branch to discharge its basic constitutional functions that they cannot be disturbed or regulated by another branch. For example, it's likely that Congress lacks the power to enact a law requiring the junior Justice to speak first at the Court's internal conferences or requiring Justice Thomas to ask at least one question at every oral argument. There likewise would be serious constitutional questions were Congress to extend FOIA to Supreme Court records such that the public would have near-real-time access to the Justice's papers. The question here is whether forcing the Court to televise its proceedings is similarly intrusive, whether doing so would so affect the internal workings of the Court as to undermine it's basic constitutional role. I'm skeptical, but this is an area where some degree of deference probably is owed to those in the best position to say for sure -- the Justices themselves. An interesting and difficult issue.
2.12.2007 9:52am
Anderson (mail):
Isn't it an incident of the role of the judge that s/he has ultimate control over the courtroom?

I think SimonD is right, and that any "core judicial power" would have to include this.

Try some hypos. Can the Congress require the justices to wear pink robes on the bench? If not, why not?
2.12.2007 10:04am
Henry679 (mail):
"You don't have much faith in the integrity of the Justices, do you?"

See Bush v. Gore, 531 U.S. 98 (2000)
2.12.2007 10:14am
OrinKerr:
AnonVCfan writes:

Is this the "Unitary Judiciary" theory? This wasn't given out at the last FedSoc convention, unless it was explained in code.

Aren't there dozens of Supreme Court cases recognizing this, starting with cases in the Marshall Court era? I wasn't trying to say anything new -- I thought I was just recognizing the centuries-old consensus. Was I wrong?
2.12.2007 10:19am
DiverDan (mail):

Souter once said that he was sometimes televised in state court, but every time he saw himself on the evening news he looked like an idiot.


Perhaps Souter's problem is that he WAS an idiot - just a thought, but judging by some of his opinions, like Kelo, entirely plausible.
2.12.2007 10:26am
madisonian (mail):
judging by some of his opinions, like Kelo, entirely plausible.

DiverDan: Please be aware that Justice Souter did not actually write an opinion in Kelo.
2.12.2007 10:39am
John M. Perkins (mail):

doesn't the Supreme Court have a lot of discretion over procedural issues?


Congress legislates civil and criminal procedure, usually with lots of deference to the Supreme Court and the Administrative Office of the United States Courts.
2.12.2007 10:43am
18 USC 1030 (mail):
If Congress were to pass such a statute and the Supreme Court said it was unconstitutional, is there really any court that would find in favor of Congress? Who would have standing to sue? The media? And, who would they be suing? The Supreme Court? The Chief Justice in his official capacity? What happens if the case goes from District Court to Court of Appeals? It can't be brought to the Supreme Court, can it?

Although the thought of NBC, CBS, CNN, MSNBC, ABC, Fox, et al v. Supreme Court of the United States and John Roberts in his official capacity as Chief Justice of the United States being argued at the Supreme Court is mildly humorous, to say the least. Does that mean we'd get the Solicitor General arguing on behalf of the justices to the justices themselves? Obviously, in theory, the justices would have to recuse themselves, but what happens when all the justices have to recuse themselves? Do they create some "super panel" composed of Senior Judges from the Circuit Court?

I don't see something like this happening. As much as the 9th Cir. and 2d Cir. may disagree, I think it's obvious that either would rule in favor of the Supreme Court. Is there really a court that would find against the high court? Or am I wrong in thinking that the lower courts would respect the Supreme Court?
2.12.2007 10:52am
Elliot Reed:
How would SCOTUS declare the law unconstitutional? Would the individual Justices even have standing to challenge the law? Could SCOTUS even hear the case? I don't know much about judicial ethics, but I'd think there would be a good case that the Justices would all be required to recuse themselves when the issue directly relates to Court procedure and many of the Court members have previously expressed strong opinions. I guess nothing would stop them from spontaneously issuing a declaration of unconstitutionality, but that would be a major deviation from prior Court practice.
2.12.2007 10:57am
Apodaca:
E Reed asks
How would SCOTUS declare the law unconstitutional? Would the individual Justices even have standing to challenge the law? Could SCOTUS even hear the case?
There's at least one example of such a legal ouroboros:
This case presents the perhaps unprecedented situation of a court, as litigant, petitioning itself, as court, for relief.
In re Skupniewitz (7th Cir. 1996)
2.12.2007 11:12am
Spartacus (www):
wouldn't the Court have to recuse itself from the appeal?

I don't believe so.

is there any statory command that oral arguments be held at all?

That neither.
2.12.2007 11:13am
Spitzer:
I suspect we may make progress toward an answer by looking at the converse of the question asked: could Congress ban the use of cameras in all instances? Looking at this question, in light of the question actually asked, seems to point to an answer: banning, or requiring, courtroom cameras in all cases would probably be unconstitutional, for there may be instances where Due Process, or privacy, or some other constitutional right, demands that cameras be banned, or, conversely, that cameras be allowed. Therefore the answer would seem to be that camera laws would be constitutional in application because the Court - exercising the Judicial Power - could still determine that other statutory or constitutional rights (or courtroom decorum) trump the camera law in a particular case. Thus, the Court's Judicial Power would overcome any statutory command to the contrary whenever it is deemed necessary to protect certain rights, or to maintain courtroom decorum, et cetera. Whenever the Court does not determine that the case at hand does not demand a result contrary to the camera statute, then the statutory rule would apply by default. Thus, the statute would not be unconstitutional on its face so long as judges retain their inherent discretion to control the courtroom and protect litigants' rights.
2.12.2007 11:19am
Spitzer:
Please ignore the double negative in my penultimate sentence.
2.12.2007 11:21am
non-native speaker:
"Can Congress make the number of Justices zero? Zero is a number."

There must be a Chief Justice.
2.12.2007 11:54am
Tracy Johnson (www):
One acronym: SCSPAN!
2.12.2007 12:04pm
Ramza:
With how expansive the court has read the commerce clause recently, I don't see why not that cameras are inevitable. I mean seriously who would watch Judge Judy when you can hear verbal smackdowns by Chief Justice Roberts, or Justice Thomas on mid afternoon tv. There is serious money to be made in this business.

Note: I am seriously joking in the above paragraph.
2.12.2007 12:47pm
logicnazi (mail) (www):
Apodaca,

Was that mention of ouroboros just to show off your Greek?

As far as the court having to bring suit itself to bar the presence of camera's I'm not sure if this is either necessary or the expected way things would happen.

I mean suppose congress really did pass a law that abolished the judiciary. If the only valid response the courts had was to assume the rule to be valid and then sue to have it overturned they would be unable to do anything about this clear violation. Instead it seems intuitive (and supported by the remarks of founding fathers about how the court will ignore unconstitutional law and unconstitutional law is no law at all) that the court could just ignore such a law.

So in this case why couldn't the courts simply refuse to comply and then initiate contempt charges against whoever tried to operate a camera during the court session? Then should anyone bring a case to enforce the law it could be overturned then without the court ever appearing as a plaintiff.

Also it seems the court has the option of alleging that proceedings where the court lacks control over it's own courtroom are foundational flawed and hence refuse to hear arguments in (other) cases so long as the law is in effect. Thus potentially manufacturing standing for individuals whose cases aren't being heard to sue and have the law overturned.

I'm not sure exactly how but it just strikes me as implausible that IF this law were unconstitutional that the court would have to sue to have it overturned.
2.12.2007 12:48pm
Justin (mail):
Furthermore, they could not "make" the number of Supreme Court Justices zero through any other power besides the impeachment power. They could statuorily downgrade the number of Supreme Court Justices, but what that would do is simply prevent the President of the United States from appointing to fill the next vacancies, rather than decommissioning any of the Justices.
2.12.2007 12:51pm
Mongoose388:
Televise SCOTUS? Why? Are they more entertaining than the Congressional clowns that already are on C-SPAN?
2.12.2007 12:52pm
Bpbatista (mail):
Just wondering -- If Congress can order the Court to televise its proceedings, can it also order the Court to conduct oral arguments only in the basement men's room of the Capitol between 2 a.m. and 3:23 a.m. on alternating Sundays in February and that all of its opinions be published in pig latin?

My point is, just how far can Congress go in directing how the Supreme Court conducts itself?
2.12.2007 1:02pm
DrGrishka (mail):
It also seems to me that Congress can condition disbursement of funds on Court's compliance with "voluntary" cameras. Although judicial salaries cannot be lowered, certainly Congress can cut funds for law clerks, or for other staff, or for that matter even for electricity and maintenance in the courthouse itself. Or Congress can banish the Court from D.C. to a much less desirable place, say Billings, MT (with all due respect to Montana).
2.12.2007 1:15pm
DrGrishka (mail):

"For example, Congress determines the number of Justices..."

Can Congress make the number of Justices zero? Zero is a number.


Reminds me of an old Russian Jewish joke.

Two Jews go to a rabbi and one asks: Rabbi, is "white" a color? Rabbi says: Of course. He then asks again: Rabbi, is black a color? Rabbi: Of course. Then the guy turns to the second person and says: See, I told you I sold you a COLOR TV.
2.12.2007 1:19pm
wm13:
Although I agree with the commentator who said Prof. Lederman is asking the right questions, I want to say that some of the other commentators have asked questions that are a lot more fun.
2.12.2007 1:20pm
Falafalafocus (mail):

Just wondering -- If Congress can order the Court to televise its proceedings, can it also order the Court to conduct oral arguments only in the basement men's room of the Capitol between 2 a.m. and 3:23 a.m. on alternating Sundays in February and that all of its opinions be published in pig latin?


Talk about [really bad pun] heasay [/really bad pun]
2.12.2007 1:26pm
guest:
Wouldn't it be constitutional for Congress to pass a bill saying that the compensation of U.S. Supreme Court Justices will NEVER increase as long as cameras are not allowed into the courtroom?


Maybe. But wouldn't it be more interesting if Congress were to tie cameras in the courtroom to a comprehensive judicial pay increase, for which the current Chief Justice and his predecessor have consistently advocated? The justices might be willing to sacrifice their own pay for the sake of keeping cameras out of the courtroom. But would they be willing to sacrifice the pay of their lower court brethren for this principle?
2.12.2007 1:31pm
anonVCfan:
Aren't there dozens of Supreme Court cases recognizing this, starting with cases in the Marshall Court era? I wasn't trying to say anything new -- I thought I was just recognizing the centuries-old consensus. Was I wrong?

I apologize. I meant this somewhat tongue-in-cheek. The point I meant to make was a much less articulate and thoughtful version of what Prof. Lederman says in the thread. I also thought, as Prof. Kerr did, that the "judicial power of the United States" was mostly about deciding cases or controversies, and that, whatever it is, it is not entirely clear that that phrase encompasses unchecked power to dictate the level of public access to court proceedings.
2.12.2007 2:00pm
zooba:
Well, the question really isn't if it is constitutional, but what could SCOTUS do?
Ignore it? Maybe, until someone from GSA just came up and installed it in the middle of the night. Maybe Souter will get up on a ladder and spray black paint on the lens of the camera, but that doesn't seem very likely.

They could stop granting oral arguments, or maybe just for cases which would be very political in nature (and thus likely to end up on the news). But then Congress could probably mandate oral arguments.

They could then stop granting cert. petitions, but then Congress could change cert. jurisdiction to mandatory appellate jurisdiction. However, at that point there probably would not be enough time for all oral arguments even if they were held 24/7/365. If Congress really went to that level of absurdity, the justices could all retire, or just refuse to docket and hear cases until Congress changed its mind.

It really seems any such conflict with the court could easily become a political pissing match. Fortunately, SCOTUS would probably win, as it has less to lose. Politicians don't have life tenure and can't afford looking as stupid as SCOTUS can.
2.12.2007 2:14pm
John M. Perkins (mail):
While very miffed by the publication of the "May it Please the Court" videos, the Supreme Court fairly rapidly allowed the publication, and eventually allowed oyez.org to post current arguments.

I believe, that the dead body statements would not survive an actual Congressional mandate. The nine might argue against legislation, but they'd take the medicine.
2.12.2007 2:26pm
John M. Perkins (mail):
... "May it Please the Court" audios ....
2.12.2007 2:27pm
Cornellian (mail):
Although judicial salaries cannot be lowered, certainly Congress can cut funds for law clerks, or for other staff, or for that matter even for electricity and maintenance in the courthouse itself. Or Congress can banish the Court from D.C. to a much less desirable place, say Billings, MT (with all due respect to Montana).

I doubt Congress really wants decade-long delays in the Supreme Court's docket. In the overall scheme of things, Congress might like the idea of televised Supreme Court hearings (though I can't imagine why) but it's hard to see Congress ever caring enough about the issue to really make a fight out of it. I just don't think congressmen and senators are being besieged with letters demanding that Supreme Court proceedings be televised.
2.12.2007 3:32pm
K:
If Congress can manage details in the courtroom then why can't they mandate that every step be televised?

Why should the justices be allowed to privately confer among themselves and with their clerks? Let us all see what the decision is likely to be in advance.

Televise the sessions live in primetime. Allow advertising.

A panel - Simon Crowell, Kofi Annan, and a player to be named will provide running comments. The Constitution does not say Congress can't appoint critics of the Supreme Court.
2.12.2007 3:37pm
Saxton:
SimonD
The threshold question is, on balance, has C-SPAN helped and improved the quality of Congress' work? (If you think it has, you evidently missed the Roberts/Alito hearings). And if you don't think it has, why would you assume it would work any better in the court?

I could not agree more. I work in D.C., so I've visited the House and Senate floors. Usually, it's one Senator or Member grandstanding in front of the cameras in order to get a soundbite on the network news. Result? All of the real legislative work gets done in committee; nothing gets done on the House or Senate floors. The irony is that adding television cameras has made the legislative process less open to the public.

And let's be honest about the reason why news organizations want to add TV cameras. They don't care about "opening up the Court to the public." They want ratings. So you'll have massive news coverage of cases on hot-button issues (abortion, affirmative action) and nothing else? I can just see it now. . .

KATIE COURIC: Today the Supreme Court heard arguments on partial-birth abortion. I don't understand all this legal stuff, so I'm just going to ask my Supreme Court correspondent which Judge sounded the angriest? Tom?

TOM: That's right, Katie. I think Justice Scalia sounded really mad. Justice Kennedy asked some questions about, uh, substantial due procedures, or something like that. I forget. Then I think one of the lawyers said something about the Third Amendment or something.

KATIE: Wow, sounds like an exciting day at the Court. Now onto a story about a cute little bunny rabbit. . . .
2.12.2007 3:53pm
Justin Levine:
I think DrGrishka nailed it. Congress has the same authority over how the Court opertates the same way it has authority over our foreign policy. It can't directly dictate what the President can do in this regard, but can still shape it through the power of the purse. It seems to me that Congress has no direct authority to rqeuire cameras in the Court, but can threaten to take away all discretionary court funding unless it complies.
2.12.2007 3:57pm
SimonD (www):
A couple of commenters asked upthread whether the Justices would have to recuse themselves. My first thought was that this would seem to be the sort of situation where the rule of necessity would apply, see United States v. Will, 449 U.S. 200 (1980). But giving the case a quick glance, however, although it wasn't applicable in Will (because in that case, involving judicial pay, all federal judges were deemed to suffer from an identical interest in the case), the court noted that 28 U.S.C. § 2109 provides (as it still seems to) that:
If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive...

In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.
So is it the Supreme Court under the rule of necessity, or does the future of cameras in the courtroom rest on the august shoulders of whichever circuit in which the lawsuit is brought? It seems like it would virtually have to be the latter.
2.12.2007 4:41pm
Justin (mail):
I once again urge the participants to stop pretending this is an instance where Congress passes a law, the Supreme Court either ignores the law or sues, and a third-party arbiter hears the dispute.

More likely, the positive question of what the result of such a law would be is wholly dependant on the Supreme Court's initial response. If the Court, which will consider not only its own perference, but also principles of comity and legislative deference, voluntarily accedes to the law, there will be cameras. If it chooses to ignore the law, then any legal challenge will necessarily fail.

People need to stop assuming:

1) that the Supreme Court will continue to oppose cameras even if Congress passes a law;

2) that the Supreme Court will accede only if it objectively and removed-from-the-controversy "finds" the law to be constitutional;

3) that it will NECESSARILTY not accede if it does NOT so find;

4) that the questions of its preferences and its "finding" are independant;

5) that anything beyond what the Court so finds in its informal considerations before responding is relevant to the positive question.

As I said before, if such a law passes, I assume there will be cameras, because the Justices (as a whole, under the leadership of Justice Roberts, and excluding all but Justice Thomas, and perhaps Justices Scalia and Kennedy) will find the deference/comity (Roberts, Alito, Ginsburg) and perception of legitimacy (Breyer, Souter, Ginsburg) issues dispositive. However, if they informally decide that those interests are not sufficient, for whatever reasons, there will be no successful challenge, probably no official "written" explanation, and if there was an explanation, that explanation will be contrived and results-oriented, REGARDLESS OF WHETHER, IN THEORY, THERE IS A LEGITIMATE DEFENSE TO THE SUPREME COURT IGNORING THE RULING.

In essence, as stated before, the question is in a practical sense nonjusiticiable, a political question rather than a legal one.
2.12.2007 4:54pm
Mark Field (mail):

If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive...


Is this statute Constitutional in light of Art. I, Sec. 1's "one Supreme Court" language?
2.12.2007 5:00pm
SimonD (www):
Justin:
If the Court, which will consider not only its own perference, but also principles of comity and legislative deference
Why would the court decide to defer -- against its own prefence -- to principles of comity and inter-branch deference when faced with a statute whose purpose is plainly at odds with principles of comity and inter-branch deference?
2.12.2007 5:07pm
theobromophile (www):
Art. III states that, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

As mentioned above, the Founders were aware of the effects of inflation and considered decreased value of money to also be "diminished" salary. So no, Congress could not threaten to withhold funding. (Well, it could; it would just be another case where the Court would have to enforce the provision itself.)

Stupid question of the day: where is the Constitutional authority of Congress to regulate the Court's internal controls? I'm reading Art. I, Sec. 8, and not coming up with much. (Presumably, the fact that the Court has not chosen to fight other statutes regarding its internal functions does not mean that it finds them constitutionally kosher so much as not worthy of internecine warfare.)

Ultimately, it is silly of Congress to enact this law. If it wants cameras, it should mosey over to the Justices's offices and convince the Court to install them. I just can't figure out why they care so much - and why they would want to provoke the Court.
2.12.2007 5:49pm
M. Lederman (mail):
Theobromophile: It's not a stupid question. Congress gets its power to establish rules for the SCOTUS from the Necessary &Proper Clause (art. I, sec. 8, cl. 18), as well as from Article III, sec. 2, cl. 2, which provides that "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
2.12.2007 6:31pm
theobromophile (www):
I'm not trying to be argumentative, but wouldn't "such regulations" relate to the first sentence of the clause, which is, in its entirety: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Doesn't that just tell us that Congress regulates the jurisdiction of the Supreme Court (and inferiour courts)?

Likewise, the first clause of the Necessary and Proper clause (pardon the seeming redundancy) relates to the enumerated powers, #1-17, none of which deal with the Supreme Court's internal functioning. The second clause states that, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So Congress's position is that requiring cameras in the courtroom is necessary and proper to executing judicial power (as seen by eighteenth-century politicians), over the objections of the judges themselves?
2.12.2007 6:47pm
SimonD (www):
Marty - doesn't that language seem to suggest regulations about how and what kind of cases get to the court, rather than what the court does once the cases are on the docket? And even if that power does reach into the court rather than light the way to its doors, does the court have any functions that are so intimate that they resist Congressional power - could the court put cameras into the Conference room? Could it abolish the Conference entirely and impose some other mechanism by which its functions would be discharged? Under that power, could Congress demandd that cases be decided seriatim? Could Congress prohibit dissenting opinions? And if not, why not, if Congress' power to regulate extends into the court's operations?
2.12.2007 6:50pm
Orangutan (mail):
I'd watch. I like to watch. But always remember: video killed the radio star.

It would make for a whole generation of armchair justices...probably not a bad thing.

/skip TV, stream it baby!
2.12.2007 7:55pm
Justin (mail):
Because, I imagine, the Supreme Court isn't childish and petty, and despite the view of certain former members of the OLC, Congress was vested with both the sole authority to make (as opposed to execute) laws, as well as the sole authority under the neccesary and proper clause. So deferring to Congress's rulemaking authority, rather than start an interbranch war that significantly weakens the stature of the Court, seems like an unlikely route for the Chief Justice to take.
2.12.2007 9:41pm
Lev:
Maybe the solution is for Congress to add an item to the SCt budget for makeup artists for the Geezers.
2.12.2007 9:57pm
vic:
The problem with lawyer blogs is that lawyers seem to think in their hubris that laws descnd from heaven or the constitution or wherever and are thenceforth etched in stone.

So, the question completely being missed in the discussion is not the absurd and hyper-technical question of whether the power exists or not, but the question of whether something like this would be wise.

sometimes i think thet the problem with the body politic in the US is too much transparency, too much openness toomuch democracy. I really don't want to sound like fascist, but there are somethings that of necessity need to be done behind closed doors. TV cameras everywhere lead not to democracy but an absurdist populusm and a fear of making the unpopular but neverthless right choices.

harking back a few years, look back at the simpson trial, a travesty of justice if there ever was one. the judge ( what was his name) lost complete control of the courtroom, and the populist who could grandstand better one. As far as i am concerned - in that particular case- i don't realy give fig. besides for that one egrigious acquital it made no substantive differnce to anyones life. However if the shear stupidity that was the simpson trial becomes the norm. The quality of jurisprudence would sink to the lowest common ( ? geraldo?) denominator.

As it is an unelected unquestioned unimpeachable media wields unmitigated extraconstitutional power in this country and some people want to give them more. they are nuts.

Let us be very clear - there is world of differnce between democravy and populism.
2.12.2007 11:01pm
DrGrishka (mail):
Vic,

For every Judge Ito, there are dozens of televised trials and hearings that are conducted with utmost decorum. For instance consider the argument by the 9th Circuit sitting en banc and hearing a case on the legality of California Governor recall. The sky didn't fall. The hearing was quite informative.
2.12.2007 11:30pm
Justin (mail):
"As it is an unelected unquestioned unimpeachable media wields unmitigated extraconstitutional power in this country and some people want to give them more."

Oh, wow. Someone's fired up the theasaurus.
2.13.2007 8:45am