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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.
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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.

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Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:

In his recent testimony before the Senate Judiciary Committee, Justice Anthony Kennedy forcefully argued for a pay increase for judges and against allowing TV cameras in the Supreme Court.

Perhaps needless to say, I disagree with Justice Kennedy on both issues. For my critique of arguments for a judicial pay increase, see here, here, and here. In addition to the various arguments for a pay increase that I have criticized in previous posts, Justice Kennedy adds the claim that "judges are being lured off the bench into academia" because law professors supposedly have higher salaries than judges do. Unfortunately for Kennedy, there is little if any proof that significant numbers of federal judges are in fact leaving the bench to become lawprofs. Indeed, it is far more common for professors to leave academia to become judges than vice versa. I can think of numerous prominent law professors who have left academia for the judiciary. The fact (noted in the article) that one district judge recently left the bench to become Dean of Duke Law School (one of the top 15-20 schools in the country) is hardly proof of a trend.

Moreover, as Paul Caron of Taxprof Blog (a supporter of judicial pay increases) points out, the average law professor at "full professor" rank makes about $136,000/year, almost $30,000 less than the salary of a federal district judge. Only 3 of 88 law schools responding to a recenty survey cited in Caron's post reported average full professor salaries higher than $165,000/year.

As for TV coverage of the Court, I remain unpersuaded by Kennedy's arguments against it, though I won't analyze the issue in detail here. Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments. According to the Legal Times story linked above:

If Congress did pass his bill [to require the Court to permit TV coverage of its proceedings], Specter said in a conciliatory tone, “it would be our opinion,” which could then be overtaken by “your opinion.” Specter did not explain the comment.

Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars that Congress does in fact have the constitutional authority to override the Supreme Court's preferences on this issue.

UPDATE: For analysis of yet another flaw in the case for a judicial pay increase, see this recent post by Ben Winograd on the Wall Street Journal Blog.

Related Posts (on one page):

  1. Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:
  2. Can Congress Force the Supreme Court to Televise its Oral Arguments?
  3. Can Congress Force the Supreme Court to Televise Proceedings?:
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