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Can Congress Force the Supreme Court to Televise its Oral Arguments?

Like Orin Kerr, Marty Lederman, and Mike Rappaport, I believe that the answer to this question is "Yes." This consensus now covers conservatives (Mike), moderates (Orin), liberals (Marty), and libertarians (me), so it has to be right!

I have a slightly different rationale for my view than any of my esteemed colleagues. Article III, Section 2, Clause 3 of the Constitution says that most of the the Supreme Court's jurisdiction must be exercised "under such Regulations as the Congress shall make." Presumably, this includes the power to establish procedural rules for the Court's proceedings, including such matters as the timing of Supreme Court terms (which is indeed regulated by Congressional statute, as Orin notes). To be sure, Congress cannot use this power to establish "regulations" that violate other explicit provisions of the Constitution. For example, it could not establish a regulation depriving justices of their life tenure, because life tenure is specifically guaranteed by Article III, Section 1. On the other hand, there is no provision of the Constitution that forbids Congress to regulate the degree of publicity accorded to Supreme Court arguments. So the justices would have to obey a congressional law mandating openness to TV coverage of oral arguments - however much it might annoy them.

Technically speaking, this Clause only applies only to cases where the Supreme Court has "appellate jurisdiction" and not to the extremely rare cases (e.g. - boundary disputes between states), where the Court's original jurisdiction applies. However, even if Congress lacks the power to force the Court to televise the latter, it would still be be able to allow TV coverage of over 95% of the Court's docket.

On a related note, it is worth considering the possibility that the Supremes' motive for banning TV coverage is not as high-minded as we might think. Several years ago, the then-Supreme Court correspondent for one of the major TV networks told me that the main reason for the justices' strong opposition to TV coverage was their desire to avoid being recognized by members of the general public in the streets - especially people who might harangue them about their decisions.

According to this reporter, the justices value the adulation and recognition they get from the legal and political community, but also like the idea of being able to remain anonymous on the street or other public venues. Of course, I do not know if this individual's interpretation of events is correct or not, though it seems credible to me. In any event, the justices' desire for a degree of privacy and anonymity (if that is indeed their motive for opposing TV coverage) is perfectly understandable, and I don't blame them for it. I do not, however, believe that it outweighs the public interest in televising oral arguments.

tea leaves:
At the very beginning of his recent speech at Northwestern, Chief Justice Roberts made what might be a telling comment (audio available here).

He noted that while Feb. 1 is remembered as the anniversary of the first session of the Supreme Court, Chief Justice Jay and his colleagues had wanted to open the court the day before. However, only three justices were present, and because the Judiciary Act of 1790 required a quorum of four justices to open the court, the Court was unable to open. The next day, Justice Blair arrived and the court was able to begin.

If the Court accepts the power of Congress to define a quorum, then surely mandatory cameras can't be objectionable.

P.S. The whole speech is worth a listen. I was particularly amazed, though, that Roberts (in discussing the court packing plan) had the temerity to attribute the failure of the plan to Hughes -- and not to the switch in time.
2.13.2007 12:40am
Elliot123 (mail):
I'm not sure about the public interest in televising proceedings. There surely is some interest by the public, but is there a venue that has been televised that has not changed due to the televising? Has the change been for the better or worse? McLuhan warned of this, and I think he was right.

Any law professors here think their classes would be the same if they were all broadcast on TV? Would it be a net improvement?
2.13.2007 12:52am
Jeremy T:
Well I don't believe the Constitution gives Congress the authority to force TV cameras into the Supreme Court. The "regulations" referred to in Article III clearly relate to matters of law affecting the cases before the Court, not incidental matters such as television cameras in the Courtroom.

Because there's no explicit grant of authority to Congress with regard to TV cameras in courtrooms, Congress doesn't have the power to regulate it. The sensible question is therefore: "Who does?" The only sensible answer is: the courts.
2.13.2007 12:56am
Ilya Somin:
Any law professors here think their classes would be the same if they were all broadcast on TV? Would it be a net improvement?

I have no objection to televising my classes, though I doubt there would be much of an audience for it.
2.13.2007 1:00am
Ilya Somin:
The "regulations" referred to in Article III clearly relate to matters of law affecting the cases before the Court, not incidental matters such as television cameras in the Courtroom.

Nothing in the text implies that there are limits on the subject matter of the regulation. Thus, it's a plenary power except to the extent that a regulation might violate other parts of the Constitution.
2.13.2007 1:02am
Jay Myers:
Imagine if there had been cameras in the courtroom when Justice Ginsburg fell asleep during oral arguments. I'm sure that the justices are acutely aware of the certainty that cameras would eventually catch something injurious of their dignity. Especially since supreme court justices are in the habit of staying on the bench until they are well on their way to senile dementia.
2.13.2007 1:36am
jim:
I have no objection to televising my classes, though I doubt there would be much of an audience for it.

I think the second clause there is the clincher. If Bill O'Reilly was going to play a 10 second clip from your class every night, along with commentary misrepresenting your words, to prove that the ACLU is destroying America, you might at least have second thoughts about it.
2.13.2007 1:37am
M. Lederman (mail):
Ilya: Yes, I agree with you -- part of that burgeoning liberal/libertarian coalition, no doubt! -- but I don't think it's quite as easy as simply identifying a source (or two) of congressional power in Article I and/or Article III for such a statute. In Orin's thread, I've cited the Article III regulations clause as well as the Article I N&P Clause. Either or both are sufficient affirmative authorities. Nevertheless, it's not sufficient to identify a source of congressional power, because a particular regulation might infringe on a "core" judicial power, just as in Plaut (and perhaps Klein). (The question is why Congress's power to establish the reg should trump the Court's own constitutional power to do the same (or the opposite).)

To repeat what I wrote in the Orin thread:

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.
2.13.2007 1:44am
OrinKerr:
Any law professors here think their classes would be the same if they were all broadcast on TV? Would it be a net improvement?

I suspect they would be pretty similar, but that on the whole it would lead to better, more effective classes.
2.13.2007 1:46am
Stephen Aslett (mail):
I'm surprised no one has consulted Federalist 86:

It has been argued against the proposed Constitution that a faction in the Congress might, by mere passage of legislation, force upon the Supreme Court wide exposure to the public by means of TECHNOLOGICAL CONTRIVANCE. To this it may be answered, that the Judicial Power vested in the Supreme Court is that which was maintained at COMMON LAW, which has long included the power of wigged judges to bar from their courtrooms of Law and Equity all manner of telescopes, megaphones, signals by smoke, &c. Indeed, there is no greater protection for the LIBERTY of a free people than by freeing them from the idleness occasioned by the viewing of ORAL ARGUMENT.
2.13.2007 1:53am
M. Lederman (mail):
Speak for yourself, Orin -- you're much more photogenic (not to mention charming) than the rest of us!

For what it's worth (not much, perhaps), I think it's very difficult to come up with any valid justifications for restricitng television/web coverage of oral arguments, which are after all public proceedings of one of the three branches of government. All of the arguments seem to me to reduce to pleas to retain a sense of the Court as magisterial and mysterious, the secrets of which are accessible only to a specialized guild. If it were up to me, I'd do away with the trappings and the pomp, such as the robes and the "Oyez, oyez" ritual -- these are, after all, officials of our government, mere human beings sitting in judgment of fellow human beings. (I clerked for Judge Weinstein, who does not wear robes while adjudicating or holding trial and who sentences defendants while sitting across from them at a table. That had a lasting impression on me, as it does on many who appear in his courtroom.)

Would television occasionally result in counsel or even a Justice playing a bit too much for the camera? Sure, although I imagine that phenomenon would diminish over time. But so what? I'll bet the President would act differently at state-of-the-union addresses and press conferences, too, if cameras weren't present -- and the same goes for congressional hearings, etc. -- but why is that a reason for not allowing broadcast?
2.13.2007 2:05am
PersonFromPorlock:
In the Nineenth Century, Winchester made rifles and Colt made pistols - until Colt began making rifles, too. Shortly, a representative from Winchester dropped in at the Colt factory with a few sample Winchester pistols and wondered if Colt had any suggestions for improving them. Colt got the message and stopped making rifles.

In a like manner, Congress could consider cameras in the Court; and the Court could indicate to Congress a willingness to hear a suit involving, say, permanent video records of closed Congressional committee meetings. Whatever the constitutional merits of the case may be, I suspect that Congress would lose interest in pressing the Court camera matter rather quickly.
2.13.2007 3:16am
Justice Stevens (mail):
Nothing in the text implies that there are limits on the subject matter of the regulation. Thus, it's a plenary power except to the extent that a regulation might violate other parts of the Constitution.

You heard it here, folks! Congress can force the Justices to wear pink tutus while hearing oral argument!
2.13.2007 4:22am
loki13 (mail):
I was wondering what argument could be made from the structure of the Constitution. It is well-established that the Executive has Inherent Executive Power, power not precisely spelled out in the Constituion, that s/he can exercise. It is an issue of some contention (especially in these times) how extensive that power is.

What I believe M. Lederman was alluding to is the concept of a Inherent Judicial Power ("central prerogatives"). Clearly, there would have to be some, small, residual IJP that Congress could not touch, ass it would no longer be operating within its Article I sphere... but what is it?

The issue with IJP, as opposed to IEP, is that the judiciary is, by design, weak in our Constitution (IMHO). Congress has great (plenary) powers over the judiciary. Even a quick glance at the physical nature of the Constitution (Article I... real long, in front... Article III... real short, last branch set up) gives you an idea of their relative importance.

But could Congress require, say, the wearing of clown suits and screaming, "I am a tired baby who needs a bottle!" during oral arguments? Hmm... I would argue that goes to separation of powers. Televised oral arguments? I think that should pass Constitutional muster.
2.13.2007 7:54am
Blasphemer:
OK. So let them wear ski-masks.
2.13.2007 8:51am
jim:
I'm surprised no one has consulted Federalist 86:

/me goes to check out Federalist eighty-si... hey, wait!
2.13.2007 9:35am
RI Lawyer:

All of the arguments seem to me to reduce to pleas to retain a sense of the Court as magisterial and mysterious, the secrets of which are accessible only to a specialized guild. If it were up to me, I'd do away with the trappings and the pomp, such as the robes and the "Oyez, oyez" ritual -- these are, after all, officials of our government, mere human beings sitting in judgment of fellow human beings.



M. Lederman has it about right, I think. No doubt judges start getting an inflated sense of their own importance after a few months of having everyone stand when you walk into the room, and thank you politely when you issue a ruling against them. There is a bankruptcy judge in Rhode Island, Arthur Votolato, who follows a practice that always impressed me. Before he takes the bench his clerk enters the courtroom and says "Please remain seated."
2.13.2007 10:14am
Elliot123 (mail):
We can't simply speak of "television" as some abstract force. It demands editing, selection of camera angles, closeups, panning, etc. In effect, a television production is a creation of the individual producer and director. When two producers cover the same event, we can easily see two very different products.

So, does the cameraman covering the law class focus on the student doing the crossword puzzle when he dislikes the prof's presentation? Does he focus on the rapt atention of another student when he likes the presentation? Does he edit the tape to highlight each time the prof scratches his right ear with his left hand?

My point is there is no objective standard of coverage which we can expect. It doesn't exist. It doesn't eist in any media.

If televised coverage really added some value, would appeals court decsions be improved by using taped coverage of the trial rather than transcripts?

Ilya, would your class change due to the TV coverage?

Coverage of courts may eventually happen, but we can be assured that what happens after the cameras is not what happened prior to the cameras. Maybe that's good; maybe it's bad. In either case, we should not be blind to the fact of the change.
2.13.2007 10:35am
DJR:
I disagree that the "Exceptions and Regulations" clause of Art. III gives Congress plenary power over the operation of the Supreme Court. The ridiculous implications cited above should be sufficient, but it also would make little sense to give Congress that power and limit only to the Court's appellate jurisdiction. Under IS's theory, Congress could have met in 1802 if it had any original jurisdiction cases to hear. Of course Marbury itself was an original jurisdiction case, and the Court decided it in 1803.

The reason that Congress could enact the Judiciary Act of 1802, and eliminate the 1802 term of the Supreme Court, is that it has the power to enact all laws necessary and proper "for carrying into Execution" not only its own powers, but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Carrying the judiciary power into execution does not include determining the Court's own rules as to access by television cameras, wearing of clown suits, etc.
2.13.2007 10:48am
Matt Barr (mail) (www):
Arguments are open to the public, under reasonable regulations (number of seats, agreement to behave themselves, etc.). I've only visited the Court once and on my own two legs, but I seem to recall its being accessible by tourists and other members of the public in wheelchairs. Televising proceedings really is just a way to ensure that anyone who wants to "attend" can, and if the Court will accomodate people in wheelchairs, there doesn't seem to be any reasonable justification for not accomodating people who can't be physically present in the first place.
2.13.2007 10:50am
DrGrishka (mail):
If they want to remain anonymous let them don wigs.


Second, it is said that, in criminal trials, they [wigs and gowns] provide a measure of anonymity for both judiciary and advocates


That is from a UK debate on "to wig or not to wig." So let Souter who is apparently most skittish about being recognized don a full wig and thus protect himself from public exposure.
2.13.2007 11:12am
KevinQ (mail) (www):
Honestly, logical arguments are all well and good, but I think this issue comes down, simply, to "Will a majority of justices accept cameras in their court?"

If they don't want to be filmed (and honestly, who could blame them), then such a statute passed by Congress will be found to, I don't know, "violate the Constitutional principle of an independent judiciary," or something. What's Congress going to do, appeal?

I do think there is value in filming the oral arguments, but I can understand the desire to maintain visual anonymity. If a justice has to think about being called out on the street, then we might find even more hard cases making bad law, or perhaps not being heard at all.

K
2.13.2007 11:19am
John M. Perkins (mail):
The first time I had a camera on me in a classroom, I found that I paid too much attention to the camera. By the third time, the camera was ignored.

I've filmed both Georgia Supreme Court and Georgia Court of Appeals oral arguments while simultaneously showing the proceedings in an overflow classroom. The courts and attorneys seemed not to notice.
2.13.2007 11:53am
Ilya Somin:
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.

I agree that there may be such a "core" judicial power that Congress can't infringe on. That's part of the reason why I wrote in the post that "Congress cannot use this power to establish "regulations" that violate other explicit provisions of the Constitution." However, there is no reason to believe that televising Supreme Court oral arguments in any way infringes that power.
2.13.2007 1:05pm
Ilya Somin:
If Bill O'Reilly was going to play a 10 second clip from your class every night, along with commentary misrepresenting your words, to prove that the ACLU is destroying America, you might at least have second thoughts about it.

Maybe O'Reilly (or his left-wing equivalents) would criticize my teaching unfairly. As participants in public debates about controversial issues, we law professors run that risk. But that isn't a reason to forbid televising our classes. The same point applies to the Supreme Court, with even greater force, since the public interest in debating their performance is considerably greater than that in analyzing the ideas of law professors.

The antidote to unfair criticism is not to hide the Supreme Court's activities (or those of lawprofs) from public scrutiny.
2.13.2007 1:08pm
DrGrishka (mail):
I wonder if Congress can mandate that SCOTUS tapes be shown either in full or not at all.

It seems to me that SCOTUS tapes would be copyrightable (to the extent that Congress wishes to change the Copyright Act accordingly). It also seems to me that the "fair use doctrine" is simply part of the Copyright Act, and therefore can also be amended. Thus, Congress can vest the Copyright in the SCOTUS tapes in say the Archivist of the US (or the Clerk of the Court or whomever else) and direct that that individual grant licenses gratis to whomever asks on the condition that if shown in public, the tape must be shown in the entirety, Violation of the condition would mean violation of the license and therefore of the copyright.

If that is feasable, I wonder if that would eliminate "10 second clip" concerns.
2.13.2007 1:34pm
Elliot123 (mail):
Ilya,

When advocating public interest one has to look at the whole system, and the expected results one reaps when trying to implement innovations in the public interest.

If it's in the interest of the public to debate the performance of judges, I suspect we will see more performing. Is there some reason to think this will improve their product? Decisions? Considerations? Do we want our judges evaluated on their televised performances during oral arguments? Perhaps we do. If so, I'd be interested in hearing about it.

How about moving cameras to the appeals courts? Might we expect the future nominees to the SC to be popular performers? Would that be an net improvement? Judge Judy is an excellent performer. Have the great jurists of the past been stellar performers? Is there reason to think they would have rendered better decisions on TV?

Is there some problem that TV in the courtroom will solve? Is something broke? If so, what?
2.13.2007 2:10pm
Guest12345:
Is the supreme court exempt from the constitutional guarantee to petition the government?

The way I see it, if the public can walk in and sit down, then a camera should be allowed. Any claims of anonymity, or a desire not to be recognized should be fairly easy to counter by pointing at the photo distributed by the White House of the president with the court in their full costumes. These guys aren't anonymous. Anyone who wants to see what they look like can simply stick their name in Google Images and voila.
2.13.2007 2:22pm
DJR:
Ilya,

Could you answer how it makes any sense at all that the Framers would have intended congress to have plenary power over to prescribe regulations (as you see that term) over the Court's appellate docket, but not its original docket? It seems far more likely that the regulations clause applies, for instance, to specifying the courts from which an appeal to the Supreme Court lies as opposed to intermediate appellate courts.
2.13.2007 3:45pm
Fearmonger (mail):
My conservative friend, my moderate friend, my liberal friend and myself all agree that Radiohead is the coolest band, so we must be right!
2.13.2007 4:39pm
CrosbyBird:
If televised coverage really added some value, would appeals court decsions be improved by using taped coverage of the trial rather than transcripts?

The two are not bound together logically. The value added from televised coverage is for the purpose of the arguments being more accessible to the general public. The use of taped coverage rather than transcripts would make the trial record visual as well as written, but serves no "public awareness" goal.

Although I don't believe the use of video coverage as a supplement to a written record is a net negative either, particularly with resolving questions of abuse of discretion allegedly based on a trial judge's personal animosity toward one party or attorney.
2.13.2007 4:47pm
Observer (mail):
As a former SCOTUS clerk, I can say confidently that the Court would hold unconstitutional any attempt by Congress for compel televised Court hearings.

Could the Congress require that conferences of the Justices be open to the public? Could the Congress require that all inter-justice memos be filed with the Clerk and available for public inspection? Could the Congress require that the Court give each advocate an extra 30 minutes of argument time? Forget about it. I don't really care how you parse the words of the Constitution: the Justices will never permit this level of intrusion by the Congress on their turf.
2.13.2007 4:58pm
Eugene Volokh (www):
Observer: Well, as a former Supreme Court clerk, I can say confidently that the Court would uphold as constitutional any attempt by Congress to compel televised Court hearings -- hearings that are, after all, already public.

Ilya has, I think, quite persuasively explained why the Court has long accepted (and, in my view, rightly accepted, especially given the constitutional text) a great deal of Congressional control of the mode of proceedings in the Court, such as the number of members, the quorum, and the like. Congress of course also controls the rules of evidence in federal trial courts, plus of course a great many of the rules of federal jurisdiction. I find it hard to see any basis on which the Court could distinguish, for instance, rules dictating the length of oral argument (or for that matter dictating the length of briefs).

Intrusions on confidentiality of court proceedings might be struck down, chiefly because of the tradition of treating such confidentiality as being of constitutional magnitude in the other branches (most obviously the Executive). But the requirement that the public generally, and not just the public in the courtroom, be free to watch the proceedings seems as at least as much within Congress's power as is the quorum, the size of the Court, and other matters that go far more deeply to the Court's operation.

Incidentally, I should note that some state courts -- I'm not sure quite how many, but I'm pretty sure some -- do have a different view of separation of powers, in which the judiciary has very broad authority to supervise what goes on within courtrooms. The Ohio Supreme Corut has even held that the state legislature doesn't have the power to enact rules of evidence, since that's a matter for the state supreme court. But federal practice has been to the contrary, and I highly doubt that the Supreme Court would depart from that practice in this situation.
2.14.2007 1:07am
Lev:

For example, it could not establish a regulation depriving justices of their life tenure, because life tenure is specifically guaranteed by Article III, Section 1.


Oh? What if it specifically defined what "good behavior" was and was not by statute, and amended House and Senate Rules so that violation of that statute was automatic nondiscretionary impeachment and trial?
2.14.2007 3:18am
Observer (mail):
Prof. Volokh - I clerked over 25 years ago and you undeoubtedly have a more current understanding of the views of today's Justices. That said, I don't think the law is compelling either way on this and if the Justices don't want televised proceedings they would have no problems finding any such act unconstitutional. I don't think you disagree with this, either, even if you think the better interpretation of the relative powers of the Congress and the Court would go the other way.
2.14.2007 1:45pm
Grant Colvin (mail):
Could the Congress require, for deciding cases coming to the Court under its appellate jurisdiction, the concurrence of a supermajority of justices (e.g., six of nine or nine of nine)? Could the Congress require a supermajority only for cases involving a specific issue?
2.14.2007 5:14pm
Ken Kukec (mail):
The policy arguments for keeping cameras out of the Court could all be logically extended to exclusion of the print media.

Secret tribunals, anyone?
2.14.2007 6:11pm
Charles Iragui:
Is there a constitutional right to branch dignity? Above someone suggested the imposition of clown suits. As a matter of separation of powers, can a branch refuse to submit to humiliating conditions?

Other than such a claim, I don't see how the Court could refuse cameras. And such a claim about cameras seems far fetched.
2.15.2007 12:10pm