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The Supremes' Love-Hate Relationship With TV Cameras

Over at Volokh, a number of the conspirators are commenting on some of the renewed proposals by Congress to televise the Supreme Court, specifically addressing whether Congress has authority to legislate televised access. Orin Kerr offers an off the cuff opinion that Congress could make the Supremes the newest reality television programming if it wanted, reasoning that:

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.

Ilya Somin agrees, but for slightly different reasons:

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 Television of coverage of oral arguments - however much it might annoy them.

Somin also discusses the Supremes' motives for avoiding television:

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.

But the privacy rationale doesn't hold water anymore, given that the Supreme Court justices' television appearances have increased significantly, according to Dalia Lithwick's recent commentary, Love Us! (The American Lawyer, 2/07). Lithwick writes:

At the same time their caseload was dropping, the justices were storming into television studios like Iraqi insurgents into Anbar province. Stephen Breyer appeared on programs ranging from The Charlie Rose Show to FOX News Sunday. Ruth Bader Ginsburg invited CBS's Mike Wallace into her chambers for a cozy schmooze, the first time television cameras have ever been in chambers. At 86, John Paul Stevens did his first television interview ever, with Jan Crawford Greenburg on ABC News's Nightline. But the year's American Idol moment came when the new chief justice, John Roberts, Jr., made his own appearance on Nightline in December. Roberts has already held a pair of press conferences and is participating in a new PBS special about the Court. The justices may seem resistant to cameras in the courtroom, but get them outside of their marble palace, and they're ready for their close-up.

I suppose, like all politicians, Supreme Court justices want to be seen in the best possible light, preferring appearances in a controlled studio rather than their unscripted performances from the bench. But like it or not, the justices are public figures who make law, and the public is entitled to see how the Supreme Court does its job. With  new technology and distribution sources like YouTube, the public gains more and more insight about how other public officials do their job. There's no reason for treating the Supreme Court justices any differently -- especially when their recent actions show that they're not averse to 15 minutes of fame.

Posted by Carolyn Elefant on February 13, 2007 at 06:19 PM | Permalink | Comments (0)


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