November 10, 2005

Can Congress force television cameras on the Supreme Court?

The L.A. Times reports on a bill that would impose television cameras on the Supreme Court:
Under [Sen. Arlen Specter's] proposal, which he introduced last month, cameras would be removed only if a majority of the justices determined that their presence would undermine the due process of a litigant in a specific case....

The public affairs network C-SPAN broadcasts gavel-to-gavel coverage of House and Senate floor sessions, and the network's Chairman and Chief Executive Brian P. Lamb told the Judiciary Committee that he had written to Chief Justice John G. Roberts Jr. offering similar coverage of the high court.

"The judiciary has become the invisible branch of our national government as far as television news coverage is concerned — and, increasingly, as far as the public is concerned," Lamb said.
I would very much like to see the oral arguments on television, but I don't think Congress ought to be imposing it on the Court. At least two of the justices -- Scalia and Souter -- have strongly opposed cameras in the Supreme Court. I should think there is a decent argument that this would be unconstitutional, violating separation of powers.

29 comments:

Doug said...

Televised Supreme Court arguments would be interesting and might even be a good idea, but Congress has no business getting involved. If they have the right to force television cameras on the Supreme Court, does that mean they also have the right to force the President hold televised cabinet meetings ?

me said...

Clearly unconstitutional. Congress has better things to do with its time.

jeff said...

Cameras in the Supreme Court?

Okay, with the following limitations:

1. Not live. Never live. Unable to be live.
2. Video provided to the entire public, no less than 12 hours after the session, only on an internet server run by either the National Archives or the Library of Congress in cooperation with the Supreme Court at a resolution of no greater than 640x480. And that's the only way it is provided to anyone. No other format of recording will be used.

Why these limits? Very simple - the OJ Simpson case showed us the hazards of cameras in the courtroom. The above limitations would make it much less attractive for exploitation in that manner.

Gerry said...

Saul,

I was about to agree with you, but then it dawned on me that Supreme Court decisions regularly affect interstate commerce, and as such Congress has the authority to regulate it. :p

Regards,
Gerry

Gerry said...

Ann,

Despite my cheeky reply to Saul above, I was all ready to say that it is clearly unconstitutional, but then I thought about Article I, Section 8, Clause 18: "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, who determines what are the necessary and proper laws for carrying into execution all powers vested by this Constitution in the government of the United States?

The Supreme Court? Or the Congress in conjunction with the President (assuming the law would not be passed by a veto-override)?

It's a nice hypothetical, but I strongly doubt this law would ever be passed, and I also believe that with the way the country is, the SCOTUS would win a pissing match against the other two branches combined.

Nick said...

Damn... and I was just about to say the same thing as gerry...

After all... it is Congress by statute which determines the number of justices, and can create federal appelate courts. Why can't it require them to air proceedings on television?

nunzio said...

It's unconstitutional for Congress to require television cameras in federal courts that are not only open to the public but which the public has a constitutional right to attend?

It'd be one thing to require that SC conference deliberations be televised because they are not public and involve internal deliberations of a co-equal branch, but that's it.

If Scalia and Souter object, they can retire.

Attila said...

Not necessarily a good idea, but unconstitutional? Congress isn't telling them how to decide their cases. It's simply saying that your proceedings are public (for anyone who wants to show up) and we want them to be public for everyone with a TV. Not at all like a cabinet meeting, which is typically held in private.

Sloanasaurus said...

I agree that Congress could not impose this rule on the Court. However, COngress could impose the rule on the Court of Appeals... perhaps they will with the new 12th Circuit that will be created with the passage of the latest budget bill!

PD Shaw said...

To improve access to the courts, Congress should order the SCOTUS to dress casual. Its less intimidating.

Gerry said...

Nunzio,

The Constitution treats the Supreme Court and lower courts very, very differently.

Unless I am sadly mistaken, there is nothing at all in the constitution which says that people have a constitutional right to attend proceedings in the Supreme Court. Can you point me to which article, section, and paragraph?

ElliotX said...

If this bill passes, and the SC does not install the cameras, it will be great theater to watch the case move through the courts and eventually end up in the United States Supreme Court.

AJ Lynch said...

Why is this important? I am from Specter's state and I ask why does he see this as a priority now? He is so desperate for a legacy.

Aaron said...

Video killed the radio star.
Video killed the radio star.

In my mind and in my car, we can't rewind we've gone to far.
Pictures came and broke your heart, look I'll play my VCR.

- The Buggles

EddieP said...

Saul

Congress has better things to do with its time.

Wish they'd do some of them. We'd be better served if no congressperson was allowed within 100 yards of a TV camera. Regards

Matt Barr said...

Very interesting question. I think Congress certainly can grant media the right to televise or video record proceedings. The judicial power of the United States is vested in the Supreme Court, and Specter's bill lets the Justices bar cameras in a particular case where that judicial power is implicated. The judicial power of the United States doesn't seem to me to include the power to bar cameras.

Televised cabinet meetings: But how and with how much candor the President conducts meetings is a deterimination based on the exercise of executive power, which is vested solely in the President.

Congress can't remove a Justice without impeachement proceedings and can't lower his compensation, but beyond those express prohibitions, it would seem to me Congress can tell the Court to do whatever it wants -- provided it doesn't encroach on its judicial power. I have argued that if someone's going to remove Christian symbols from courthouses it could and should be the applicable legislature. I think they could certainly do that, and I think Congress could permit media to record or broadcast oral arguments.

John(classic) said...

For unquestionable congressional power:

"the appellate jursidiction of the United States shall not extend to any case before the Supreme Court the arguments of which are not (what: televised? IP broadcast?)"

Mark the Pundit said...

Well, if this bill does pass and the Supreme Court strikes it down, I have $100 that says Scalia writes the majority opinion!

chuck b. said...

I had the same thought as elliotx. Who would be the parties? Supreme Court v. United States?

Sam said...

Unfortunately, I don't think there is any authority whatsoever in the Constitution giving the Justices the ability to block cameras in their courtroom if a law is passed. It's terrible policy in my view, but the level of authority that the Court exercises today is already on extremely thin ice, Constitutionally speaking. Of course, they could generate a right to privacy for themselves.

Jimmy said...

Brian Lamb is on a power trip. C-SPan 1, 2, and 3 aren't enough for him. He wants to launch C-span 4.

PD Shaw said...

What if Congress conditioned future raises or some other benefit on accepting television cameras?

Murph said...

EddieP:

“We'd be better served if no congressperson was allowed within 100 yards of a TV camera.”

For many years I have said, somewhat in jest that Congress would do less harm and spend a smaller amount time in Washington if we turned off C-Span -- and the air conditioning.

As a layperson I can’t help but think that the separation of power clause in the Constitution would trump whatever justification Sen. Specter dreams up to justify his ‘landmark’ idea. The executive and legislative may push and shove each other all they like but neither should make a habit of tweaking the SCOTUS nose too often.

Simon said...

What exactly is the purpose which would be served by putting cameras into the court? I am at a loss to understand why the onus is on those opposed to cameras to say why not, rather than those in favor to say why. So do explain: what exactly is the compelling purpose served by putting the cameras in the courtroom?

CSPAN has a rationale: we elect these people, they are our representatives, there is a rational goal served by letting us see them work. But the court does not represent us; it is not accountable to us in a direct sense. Just as I see no purpose of the court which might be furthered by a "diversity criteria" for its membership, so I fail to understand what it is the people think the Court does which requires them to watch.

Simon said...

Incidentally, isn't the fact that this is Arlen "magic bullet" Specter's idea sufficient reason on its own to reject it?

nunzio said...

Gerry,

Good point. I was thinking of the public's right to attend a criminal trial. I suppose that wouldn't extend to a right to attend a criminal appeal.

But Congress does have power under Art. IV, Sec. 3 "to make all needful Rules and Regulations . . . respecting . . . Property belonging to the United States."

I think maybe the Justices should remember who they work for, and that citizens have the rights through Congress to dictate some aspects of the Supreme Court, especially their public proceedings.

Scalia was just on the "Today" show. Breyer's out hawking his monograph on why his personal views are the right way to interpret the Constitution.

If these folks don't like attention, then they should find other work.

knoxgirl said...

I actually think Jeff's idea is really good. Then only the law geeks who are really interested in what's going on will bother. The media will not be as readily tempted to exploit what's going on for political --or other--reasons.

As to Congress, at this point, I'd prefer they not stick their noses in *anything.*

Dan said...
This comment has been removed by a blog administrator.
Dan said...

I think television cameras always have a negative impact on government institutions. As a nerd, I kind of like them; watching SCOTUS oral arguments would be, well, cool. But look at what they do to our institutions: court trials become circuses. Look at Congress especially: no one ever watches them save for a handful of nerds, but our pompous congressional windbags preen endlessly before them, mistakenly thinking that people care (or hoping for a one-in-a-hundred chance that they might be soundbited on the news--and again, mistakenly thinking that people care). Though I've watched C-SPAN, and frequently enjoyed it, surely it would do some good to congressional proceedings and congressional hearings to turn the cameras off. Put simply: do we really want people thinking they understand the Supreme Court's cases based on soundbites from TV news? Do we want our justices worried about making gaffes that would embarrass them and the institution on national TV? Since we can't very well take the cameras out of where they already, at least keep the cameras out of where they aren't.