You Have a Face Made for Written Legal Opinions

Kerry Howley | April 25, 2006

Earlier this month, Justices Anthony Kennedy and Clarence Thomas appeared before the House Appropriations Committee to argue against televising Supreme Court proceedings. Their protestations ranged from concerns about "etiquette" to Kennedy's explanation that "in our branch, we are judged by the way we write." Writing in the Washington Post, agressively pro-camera Sen. Arlen Specter (R-Penn.) manages to turn the issue into an intra-branch catfight, ruefully asking "does the Supreme Court respect Congress?" and pleading that Congress needs a TV-watching public to protect its feeble members from Supreme bullying. Nat Hentoff, ignoring Specter, tears into the anti-camera ramblings of Kennedy, Thomas, and Souter on different grounds:

Is Kennedy all that satisfied with the accuracy and contextual reporting on his own written opinions and dissents? At least Kennedy, before the House subcommittee, was not as vehement in his opposition to television in oral arguments as Justice David Souter was in his previous testimony there, when he pledged famously -- or rather, infamously -- that if television were allowed in his courtroom, it would be over his dead body.

He obviously doesn't realize -- nor does Kennedy -- that this magisterial courtroom is not a private condominium...

Justice Clarence Thomas told the subcommittee that there would be security concerns and "members of the court who now have some degree of anonymity would lose their anonymity."

If he's that concerned about anonymity, maybe he should get another kind of day job.

Hentoff tells Reason who belongs on the Supreme Court here.

Comments

|4.25.06 @ 3:09PM|#

I have an freakin' sweet idea for Congress: introduce and pass a Constitutional Amendment forbidding Supreme Court proceedings from being televised. And then, voila!, you're virtually assured that the Court will rule against it.

|4.25.06 @ 3:09PM|#

If he's that concerned about anonymity, maybe he should get another kind of day job.

Amen! I don't see why the privacy of public servants while they're doing their job should be a concern for me. I should know what I'm paying these people to do.

|4.25.06 @ 3:09PM|#

The Supremes should fight back. Since we all knoooow they legislate from the bench, and are on the side of the terrorists, they should pass some legislation forcing Congress to have prayers from the Koran, and decorations that would be fit for the Prophet.

|4.25.06 @ 3:13PM|#

Hopefully once the tv cameras get in there they will be less likely to let Dick Cheney keep his energy meetings secret.

|4.25.06 @ 3:15PM|#

1. As Sam McManus implies, televising the operations of the government is a way for the people to hold the government accountable.

2. The purpose of having an independent judiciary is to insulate the courts from political pressure.

3. The people hold the government accountable to exerting political pressure on the government actors they observe, and their bosses.

Based on these propositions, I have to conclude that televising the Supreme Court would serve to make its members less immune from political pressure, and therefore, less able to remain true to their mission.

|4.25.06 @ 3:25PM|#

I don't see what good it would do to televise the Court. It's not like the public would understand anything. Most of the important stuff that occurs doesn't go on in oral arguments anyways. In any event, whereas televising Congress makes sense in that it is a democratic body and the public is allowed and supposed to influence it, the Court is, in a narrow sense, anti-democratic and public pressure is not supposed to have any influence. The fact that it has had an effect (witness both Plessy v. Ferguson and Brown v. Board), does not mean that this effect should be expanded any further.

Besides, the justices that we have now are not the brightest legal minds of their generation. If we annoyed them off the bench, only absolute idiots would be willing to become justices.

keith|4.25.06 @ 3:30PM|#

Perhaps some sort of reality show is called for.

|4.25.06 @ 3:30PM|#

Joe,

All true. But the problem is that you are starting with an illusion, not reality. To the casual observer, it may appear that the Court is immune to (or at least protected from) the political process, but it ain't true. Who chooses them to take those seats? The very same politicians whose laws will come in front of them, of course!

Now, you'll argue that lifetime appointment insulates them. Well, if that were true, there shouldn't be any problem with televising proceedings, right? In any event, lifetime appointment does no such thing. You don't get nominated unless you are a true believer with a long personal relationship with those in power or can be controlled (skeletons in the closet, etc.).

Do you honestly think these people, who were career politicians or party loyalists (otherwise they wouldn't even get a sniff at a nomination) just up and drop their party affiliations once nominated? A review of just Justice Scalia's background should be more than enough to convince otherwise anyone naive enough to believe that...

|4.25.06 @ 3:44PM|#

You could always videotape them and delay the release of the tapes. Like a five-year delay.

|4.25.06 @ 3:56PM|#

I agree with joe's analysis up front, but I conclude that life time appointments should make them immune enough, even with the insulation reduced. I want cameras in.

|4.25.06 @ 5:04PM|#

i AM GOING TO AGREE WITH jASON lIGON. In society at large we generally have too much transparency, rather than too little. Once we start making exceptions to transparency on pretexts as flimsy and open-ended as protection from inappropriate political pressure, we will quickly end up with no transparency at all. This is especially important for institutions like SCOTUS because ultimately they decide on FOIA cases and therefore have an active role in setting transparency rules in all areas of gov't.

(I can't wait til Cathy Young takes her 1st FOIA case all the way to SCOTUS. That lady is a trooper, a dedicated professional!)

|4.25.06 @ 5:07PM|#

should be "generally too little transparency, not too much"

|4.25.06 @ 6:16PM|#

There is already enough transparency in the Court. The hearings are open, transcripts are eventually released, and the courts are the only part of government that ever explains itself in a meaningful fshion.

Also, the justices are not known for their party loyalty. Kennedy and Souter are often all over the place. So was O'Connor.

|4.25.06 @ 10:37PM|#

I think this could be great...you could televise complicated legal proceedings and people could actually start to understand the laws that control them. No more idiotic "watercooler" lawyers.

Oh wait, someone would actually have to watch it first...there's not so much watercooler lawyering going on as there is watercooler "Simon Cowell-ing" anyway. Televise them for transparency and understand nobody's going to watch the stuff anyway.

|4.26.06 @ 5:10AM|#

The unspoken problem here is that the camera's are bound to catch one of these guys snoozing away at some point, which would be embarrassing of course. Unless they figure out a way they can televise the proceedings but only show the justice who is speaking, similar to the way Congressional sessions only show the podium & not the honorable Senator from Whevever scratching his ass.

I personally don't see how televising will help the cause of justice in any way.

|4.26.06 @ 9:09AM|#

They say that politics is show business for ugly people. So what makes these clowns any different?

This only means that the judges will have to shower, shave, keep awake, and not say something stupid. Boo-hoo.

|4.26.06 @ 9:41AM|#

as Justice David Souter was in his previous testimony there, when he pledged famously -- or rather, infamously -- that if television were allowed in his courtroom, it would be over his dead body.

I really hate it when these politico types make promises they have no intention of keeping.

|4.26.06 @ 9:45AM|#

I personally don't see how televising will help the cause of justice in any way.

Here is one way. Strictly hypothetical, but I think it could happen:

Citizen Voter decides to watch SCOTUS hearings. They discuss weighty issues like abortion, NSA wiretapping, Gitmo, war powers, patent law and all the rest. The discussions at these hearings turn out to be more sensible, enlightening and multi-sided than anything Citizen Voter has seen b4 when he watches Congressional hearings and Presidential Press Conferences. As he hears this discussion, Citizen Voter thinks about the underlying issues more clearly and forms better-informed, better-thought-out opinions on the weighty issues.

THE BIG PAYOFF: When Citizen Voter votes in the next election his vote is more informed and goes to a better candidate than it otherwise would have.

|4.26.06 @ 9:50AM|#

"This only means that the judges will have to shower, shave, keep awake, and not say something stupid. Boo-hoo."

The problem is that the justices ask questions from the bench, and some of them might seem insane and not indicate at all what their actual positions are.

Besides, in any event, the Court should be allowed to run its own internal affairs, and the Congress has generally deferred to the courts in procedural matters (e.g. the Rules Enabling Act allowing the Supreme Court to write the Federal Rules of Civil Procedure), and this seems even less related to the substance of the Court's decisions.

|4.26.06 @ 10:07AM|#

The problem is that the justices ask questions from the bench, and some of them might seem insane and not indicate at all what their actual positions are.

Sometimes that is what good debate looks like. It is about time all the soap opera ladies of Ron Hardin's America, who do not get to go to law school, have an opportunity to learn what a searching, honest, unpredetermined debate can look like. It might scare them at first. Good! Some of y'alls around here could use similar training. I have confidence in the court to bend the people rather than other way round.

Besides, in any event, the Court should be allowed to run its own internal affairs . . .

The people who pay their salaries should run their affairs.

|4.26.06 @ 12:24PM|#

Citizen Voter

First, I pity the poor fool with a name like that.

Second, yeah, I suppose it's true, seeing our Congress in action on TV probably has given us a better crop of legislators in the past 25 years. God knows being represented by John McCain gives me all kinds of pride and warm and fuzzy feelings every time I think of it.

The Supremes aren't going to do this because they're already living the life of gods among us, changing anything for them would just diminish their general level of perks. For Congress putting cameras in the chambers was just another chance for their mugs to be on TV, something the Supremes obviously don't want or need.

|4.26.06 @ 12:40PM|#

from the Interwebs:

Broadcast "gavel to gavel" on the ABC and DuMont networks from 22 April to 17 June 1954, the Army-McCarthy hearings were the first nationally televised congressional inquiry and a landmark in the emergent nexus between television and American politics. . . . In televisual terms, the hearings pitted a boorish McCarthy and a bleary-eyed Cohn against a coolly avuncular Joseph N. Welch of the Boston law firm of Hale & Dorr, whom the Army had hired as its special counsel. Welch's calm patrician manner served as an appealing contrast to Cohn's unctuous posturing and McCarthy's rude outbursts (The senator's nasal interjection "Point of order!" became a national catchphrase). . . . The afternoon of 9 June 1954 brought the emotional climax of the hearings, an exchange replayed in myriad Cold War documentaries. Ignoring a pre-hearing agreement between Welch and Cohn, McCarthy insinuated that one Fred Fischer, a young lawyer at Hale & Dorr, harbored communist sympathies. Welch responded with a righteous outburst that hit all the hot buttons: "Until this moment, senator, I think I never gauged your cruelty or recklessness....Have you no sense of decency, sir, at long last? Have you left no sense of decency?" When McCarthy tried to strike back, Welch cut him off and demanded the chairman "call the next witness." Pausing just a beat, the hushed gallery erupted in applause. The uncomprehending McCarthy, shot dead on live TV, turned to Cohn and stammered, "What happened?"

|4.26.06 @ 12:44PM|#

Television cameras covered the Watergate hearings gavel-to-gavel, from day one until 7 August. 319 hours of television were amassed, a record covering a single event. All three commercial television networks then in existence--NBC, CBS, and ABC--devoted an average of five hours per day covering the Watergate hearings for their first five days. . . . As the Ervin Committee concluded its initial phase of Watergate hearings on 7 August 1973, the hearing's television audience had waned somewhat, but a majority of viewers continued to indicate a preference that the next hearing phase, scheduled to begin on 24 September, also be televised. The networks, however, felt otherwise. The Ervin Committee continued the Watergate hearings until February 1974 but with only scant television coverage. . . . In fact, Special Prosecutor Archibald Cox had argued that television's widespread coverage of Watergate testimony could endanger the rights of witnesses to a fair trial and in doing so, could deprive Americans of ever hearing the full story of Watergate. The Ervin Committee refused Cox's request to curtail coverage, saying that it was important that television be allowed to carry Watergate testimony to the American public firsthand. . . .The Judiciary Committee began its televised public debate on the evening of 24 July. The commercial networks chose to rotate their coverage in the same manner as utilized during the Senate Watergate hearings. What's more, the commercial networks telecast only the evening portions of Judiciary Committee deliberations, while PBS chose to telecast the morning and afternoon sessions as well. As a result, television viewers were provided nearly 13 hours of coverage for each of the six days of Judiciary Committee public deliberations. Eventually, the full House and Senate voted to allow television coverage of impeachment proceedings in their respective chambers, once assurances were made that the presence of television cameras and lights would not interfere with the president's due process rights. Final ground rules were being laid and technical preparations for the coverage were underway when President Nixon's resignation on 9 August 1974, brought the impeachment episode to an end.