A proposed law ordering the US Supreme Court to provide live television coverage of its public proceedings threatens to spark a constitutional showdown pitting Congress against the nation’s highest court, legal experts warned members of the Senate Judiciary Committee on Tuesday.
The experts were asked to analyze the Cameras in the Courtroom Act of 2011, which, if passed, would require television coverage of all open sessions at the high court.
“There are serious reasons to believe that legislatively overturning the court’s policy [currently banning television broadcasts] would be unconstitutional,” Supreme Court advocate Maureen Mahoney told the senators during a two-hour hearing.
“It would be an effort to strip the court of its authority to control proceedings in its own chamber,” she said. Congress has a degree of power over the high court, but it may not “impermissibly intrude on the judiciary,” Ms. Mahoney testified.
Supreme Court advocate Thomas Goldstein said that if the legislation passed Congress and was signed into law any resulting legal challenge to the broadcast mandate would ultimately arrive at the Supreme Court.
“Can you force them to do it — nobody knows,” Mr. Goldstein said. But he added: “In all likelihood, the answer is yes.”
But Goldstein’s final advice to federal lawmakers was to allow the justices to voluntarily change their policy rather than trying to force their hand.
“The trajectory is that it is inevitable that television will be in the Supreme Court,” he said. “And I would not provoke the constitutional controversy of requiring them to do it.”
The measure, introduced on Monday by Sens. Dick Durbin (D) of Illinois and Charles Grassley (R) of Iowa, is the latest in a long-running effort by some members of Congress to bring a higher level of transparency to the workings of the Supreme Court.
The effort comes in advance of much-anticipated oral arguments next year in cases examining the constitutionality of President Obama‘s health-care reform law.
C-Span and other media outlets have asked Chief Justice John Roberts to permit live television coverage of the historic appeals. No decision has yet been announced.
Although many state courts have long operated under the watchful glare of media cameras, the federal judiciary has staked out a more cautious approach. There have been pilot projects allowing selective broadcasts of federal trials and appeals.
The Ninth US Circuit Court of Appeals in San Francisco, in particular, has embraced the presence of cameras as an aid to public scrutiny and understanding of the judicial process. In contrast, the US Supreme Court has consistently rebuffed invitations to wire up with cameras.
The court has responded to public interest in certain high-profile cases by releasing audio recordings of the argument sessions later that same day. The court did so during the 2000 election battle in Bush v. Gore, and after argument in the gun rights case, District of Columbia v. Heller.
But opposition to live broadcast images from the court has remained firm. In an indication of the strong emotions the issue can evoke, former Justice David Souter once famously remarked: “The day you see a camera coming into our courtroom it is going to roll over my dead body.”
The primary concern, according to statements made by many of the justices, is that the introduction of cameras at the high court will change the nature of oral argument, undercutting the usual robust exchange between the justices and counsel, and among the justices themselves. Some worry that a nationwide audience might provide too tempting an opportunity for grandstanding by the lawyers … and perhaps even a justice or two.
It would likely end the convenient anonymity of most justices. And then there’s the prospect that live video and sound emanating regularly from the high court might provide juicy material for satire on the parody news programs of Comedy Central.
Perhaps in recognition of mounting pressures, the court under Chief Justice Roberts has made significant moves to facilitate closer examination of its work.
Traditionally, members of the media are permitted to watch court proceedings, take notes, and then report what they observe. Under Roberts, written transcripts are now released a few hours after every oral argument, and the audio of each argument session is made public later that week.
That’s not enough, critics say.
“The public has a right to see how the court functions and how the court reaches its rulings,” she said.
Before his retirement, former Pennsylvania Sen. Arlen Specter (D) was one of the leading advocates in Congress for televising Supreme Court sessions. He said the courtroom at the Supreme Court only holds 250 people and that it was “selfish” of the justices to limit the ability of Americans to watch the judicial process unfold in important cases.
“The issues which are coming up in the Affordable Care Act really ought to be subject to really close public scrutiny,” Mr. Specter said. “I believe the legitimacy of the court itself is at stake for the people to understand what the court does.”
He added: “It is not their domain, it is the public’s domain and [the court] ought to be accountable to the public.”
Goldstein estimated that if the high court agreed to televise the health-care reform appeals it might draw 50 million viewers nationwide.