Michael C. Dorf

Arlen Specter's Swan Song: Mandating Cameras in the Supreme Court

By MICHAEL C. DORF
Monday, September 20, 2010

By MICHAEL C. DORF

With the clock winding down on his remarkable three decades in the United States Senate, last week Arlen Specter made one more push on an issue that has long pre-occupied him: cameras in the courtroom. Specter said that he would seek the passage of a bill that would require the Supreme Court to permit television coverage of all of its open sessions, absent a decision by the Court that such coverage would, in any given case, violate the due process rights of a party before the Court. Because the Court already releases audio recordings and full transcripts of virtually every open session--and because parties, as opposed to lawyers, play no formal role in the Court's proceedings--the effect of the bill, if passed, would be to open just about all of the Court's oral arguments to television cameras.

The Justices themselves already have the power to open their courtroom to television coverage, but they have chosen not to do so. Hence, the Specter bill, if passed, would be an unwanted imposition on the Court. Would it therefore amount to a violation of the constitutional principle of separation of powers? Probably not, but as I explain in this column, the bill raises fundamental constitutional and prudential questions.

Due Process Limits on Cameras in the Courtroom

Many states have experimented with television coverage of court proceedings. Because of trials' greater potential for drama, viewers tend to be more interested in trials than in appeals, but some appellate proceedings are also televised. Traditionally, the federal courts were much less open to television, but a recent decision by the Judicial Conference will allow television coverage of federal civil trial court proceedings, absent an objection from either party.

The argument for permitting televised court proceedings--even over the objection of one or more parties--is straightforward: Courts are a vital component of our government, and in a democracy, the work of government should be presumptively open. That principle flows from the First Amendment, which mandates that, absent special security or privacy concerns, court proceedings should be open to the press and public.

However, in the 1965 case of Estes v. Texas, the Supreme Court ruled that television coverage of a criminal trial would violate the due-process rights of the defendant. The Court rested its decision mostly on concerns about the likely impact on jurors and the disruption that would arise from the sort of television equipment that was available in 1965. Because the public and the press (including television reporters) could attend trials, the Court concluded in Estes that the First Amendment was satisfied.

With advances in miniaturization over the last forty-five years, television cameras can now operate unobtrusively. Moreover, the worry about jurors has no bearing on the televising of appellate proceedings of the sort that occur in the U.S. Supreme Court. And in the rare case in which the televising of proceedings would violate a party's due process rights, the Specter bill would specifically permit the Justices to turn off the cameras.

Accordingly, it cannot reasonably be maintained that permitting cameras in the Supreme Court would violate the constitutional rule of Estes. What, then, is the objection to doing so?

Grounds for Opposing TV Cameras in the Supreme Court: "Hamming It Up" and Sound Bites

When speaking publicly about the matter, Supreme Court Justices who oppose televising their proceedings have typically pointed to two concerns: First, they worry about lawyers--and even some of the Justices themselves-- "hamming it up" for the TV crowd. Second, they fear that the inevitably selective coverage of oral arguments that would be presented on TV news programs would offer the public a distorted vision of the Court's work--which, in turn, would also distort the Court's deliberative processes. In my view, however, neither concern justifies forbidding television coverage of Supreme Court oral arguments.

The "hamming it up" worry stems in part from the generally negative experience of the televised O.J. Simpson murder trial in 1995. Lawyers--and even Judge Lance Ito--often appeared focused on how their case was playing for the home audience, rather than for the jury.

Yet the "hamming it up" worry seems mostly overblown in the Supreme Court context, given the different nature of Supreme Court proceedings and the different stakes. Unlike a typical jury trial, Supreme Court oral arguments have strict time limits: Absent extraordinary considerations, each lawyer has thirty minutes to make his or her case. Thus, every second spent playing to the crowd takes away a second during which the lawyer could be making persuasive points to the Court.

As for the Justices themselves, even without TV cameras they will sometimes interject a joke or otherwise play to the courtroom audience during oral argument. These moments of comic relief do not typically derail the arguments, and there is no reason to think that the presence of an unobtrusive camera would change the basic dynamic. More likely, after an initial adjustment period, the lawyers and Justices would pay no attention to the cameras. At least, so one could assume unless and until experience demonstrates otherwise.

What about selectivity? Testifying before Congress in 2007, Justice Kennedy explained the worry in terms of the Court's processes. He unpacked his argument in the following steps: (1) Oral argument is the first opportunity for the Justices to discuss a case with one another; (2) The questions the Justices ask of lawyers are aimed in part at persuading colleagues of their viewpoint, but they necessarily express tentative judgments; (3) The final words on which the Court's work must stand or fall appear in the written opinions; (4) However, with the prospect of TV coverage, Justices will be tempted to produce "sound bites" for the evening news, thus undermining the basic dynamic of the oral argument.

The sound-bite worry, like the "hamming it up" worry, rests on the assumption that the Justices cannot control themselves. Presumably, they know the limits of their own self-control better than anyone else, but I nonetheless remain skeptical. As with the "hamming it up" concern, if a camera is sufficiently unobtrusive, the urge to produce a sound bite may not manifest itself.

More broadly, Justice Kennedy's argument appears to prove too much. If one really were concerned that public reaction to what the Justices say at oral argument would shape the oral argument, then one would entirely close oral arguments to the public. After all, the core of Justice Kennedy's argument is often invoked as the basis for ensuring the secrecy of the deliberations of various institutions. But once an institution decides to open its proceedings to the public--as the Court has done with oral arguments, and as it would appear obligated to do under the First Amendment--it is hard to see that much incremental harm would occur as a result of permitting video coverage, rather than simply continuing the current practice of releasing audio and transcripts.

Thus, to my mind, Justice Kennedy and the rest of the Court have made a poor judgment in excluding cameras from Supreme Court arguments. Nonetheless, it is their judgment to make, is it not?

In his testimony to Congress, Justice Kennedy alluded to concerns about separation of powers and asked Congress to respect the judgment of a coordinate branch of government. This point--which other Justices have also made--has two elements: First, there is the contention that the Specter bill would be unconstitutional; and second, there is the complaint that even if the Specter bill were constitutionally valid, it would still be an imprudent intrusion into the Court's decision-making processes.

Let us consider these points in turn:

Does the Specter Bill Violate the Separation of Powers?

According to Senator Specter, Congress can mandate cameras in the Supreme Court pursuant to its power, under Article III of the Constitution, to make "regulations" concerning the Court's jurisdiction. Federal statutes enacted by Congress set such basic matters as the number of Supreme Court Justices and, within broad limits, the kinds of cases they hear. Although Article III forbids Congress from lowering the Justices' salaries, Congress decides when to give them a raise, and if so, by how much. Congress also sets the budget for the Court, and while Congress generally gives the Justices the funds they request, it is under no constitutional obligation to do so.

Given all of the truly important judicial matters that fall within congressional control, Senator Specter says, surely Congress can regulate a relatively tangential matter such as whether cameras must be permitted in Court. That conclusion is probably correct, but it is not exactly obvious.

The power of Congress to decide what cases the Court hears does not include the power to decide ­ how the Court should go about deciding them. Thus, in the 2001 case of Legal Services Corp. v. Velazquez, the Court invalidated a restriction that Congress had placed upon funds for attorneys to aid indigent welfare recipients: Lawyers receiving funding under the program could not take actions aimed at amending or otherwise challenging existing welfare laws. Although Congress did not have to fund legal services for the indigent at all, the Court said that once it did so, it could not restrict the arguments that a lawyer could make, or that a court could consider. The decision was rooted in the First Amendment as informed by separation-of-powers principles.

To be sure, mandating cameras in the courtroom is less about the substance of judicial decision making than the restriction on the types of arguments that was at issue in Velazquez was. In Velasquez , lawyers were forced to eschew certain arguments entirely; with cameras in the Court, at most lawyers would arguably have an incentive to make (or drop) certain kinds of arguments, or to make arguments in certain kinds of ways. But the debate over cameras in the Court still raises constitutional issues.

Consider an analogy concerning the Executive Branch: Congress can create and eliminate departments within the Executive Branch, and can exercise considerable control over them, through matters like confirmation of principal officers and budgeting. Nonetheless, the power to decide great matters does not entail the power to decide all small matters.

Suppose, for instance, Congress enacted a law mandating that at every Cabinet meeting, the President must give each of his Cabinet secretaries an opportunity to speak for at least two minutes before the President made a decision. Such a law would not constrain the substantive decisions of the President in any way. Nor would it be nearly so determinative of Executive policy as a decision to abolish or substantially cut funding for some federal agency. It would not even violate a general principle forbidding congressional control over Executive Branch procedure; after all, the federal Administrative Procedure Act (APA) sets forth detailed procedures that federal agencies must follow in adopting regulations or taking other official actions--and no one seriously challenges the APA's constitutionality on that ground.

Yet the hypothetical "two-minute speech" law would arguably violate the separation of powers, by unduly interfering with the most internal functions of the Executive Branch. Although the Supreme Court ultimately rejected President Nixon's claim of an absolute executive privilege in the 1974 case of United States v. Nixon, en route to that conclusion the Court did recognize a constitutional dimension to internal deliberations of the Executive. At a minimum, each branch must have a good reason for trying to interfere with the deliberative processes of either of the other branches.

That fact probably explains why Justice Kennedy sought to portray oral arguments as part of the Court's internal deliberative process. The more oral argument looks like a Cabinet meeting, the less control Congress may legitimately exercise over it.

In the end, however, Senator Specter probably has the better constitutional argument. If Congress were to mandate that the Justices' post-argument conference had to be public, then that would raise serious separation-of-powers issues. But given that Supreme Court oral arguments are already open to the public, the Specter bill would have only a marginal impact on the Justices' deliberations.

Prudential Considerations

To say that the Specter bill is probably constitutional, however, is not to say that enacting it would be a good idea. Even if one thinks, as I do, that the Court ought to allow its oral arguments to be televised, respect for the Court's independence means that the Court itself, rather than Congress, should decide the issue.

There are many constitutionally-valid laws that Congress could pass that would nonetheless threaten judicial independence. For instance, Congress could eliminate funding for law clerks, legal secretaries, and air conditioning at the Supreme Court. Within the broad limits set by the Suspension Clause (concerning habeas corpus), Congress could probably eliminate whole categories of cases from the Court's appellate jurisdiction. It could--following the plan put forward by Franklin D. Roosevelt--increase the size of the Court so as to pack it with Justices who would be sympathetic to a sitting President.

These and other actions fall pretty plainly within the letter of what the Constitution permits; yet our legal culture equally plainly regards them as off the table.

Mandating TV cameras in the Supreme Court, when the Court itself does not want them there, does not rise to the level of Court-packing, but it does show disrespect for the Court as an institution.

To some extent, that disrespect may seem warranted. As Senator Specter himself noted when Justice Kennedy appeared before Congress in 2007, the Court had effectively told Congress how to hold its fact-finding hearings when it struck down the civil remedy provision of the Violence Against Women Act, in the 2000 case of United States v. Morrison. If the Court believes that it can use its power of judicial review to dictate congressional procedure, then why shouldn't Congress use its power to dictate Court procedure?

The short answer is that two wrongs don't make a right. If Morrison or other Supreme Court decisions improperly extend the Court's authority into the internal workings of other branches, then they should be resisted with means that do not themselves threaten judicial independence.

Politicians often urge courts to exercise "judicial restraint"--by which they mean that judges should stay their hand even when they think that they know better than the elected officials whose laws and policies they must review. (This is what is meant when the point is made that a court should not become a "super-legislature.") When it comes to cameras in the Supreme Court, Senator Specter and his colleagues should exercise "congressional restraint." TV cameras belong in the Supreme Court, but the Justices should be given the opportunity to reach that conclusion on their own.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. His latest book is   The Oxford Introductions to U.S. Law: Constitutional Law   (with Trevor Morrison). He blogs at dorfonlaw.org.

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