Splitting 5-4, the Supreme Court on Wednesday blocked any television broadcast to the general public of the trial in a San Francisco federal court of the challenge to California’s ban on same-sex marriage. The stay will remain in effect until the Court rules on a coming appeal challenging the TV order. The Court, chastising the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion. The ruling, banning TV broadcasting “around the country,” came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired.
As a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on. The trial’s length has been estimated variously at two weeks to several weeks. There is no indication that final Supreme Court action on the dispute would be speeded up to the point that the question could be resolved during that brief span of time. And there is nothing in the Court’s Rules that would require filing of formal appeals to challenge the TV viewing in advance of the likely conclusion of the trial.
The Court gave the supporters of the Prop. 8 ban two options to seek a final order against the television coverage: they could file a petition for review from the lower courts’ orders, or they could file a petition seeking what is called a “writ of mandamus” — that is, an order from a higher to a lower court to take, or not take, some action. The Court has already been told that both types of challenge will be filed with the Justices. The Court did not indicate whether it would grant review of either approach, although Wednesday’s order was a strong hint that it would.
And, in fact, the main opinion seemed to indicate that the Court, in the last analysis, would not permit the coverage in any event. The television viewing of the Prop. 8 trial was to be done as part of a “pilot program” in the federal courts in the Ninth Circuit. The Court majority wrote: “This case is…not a good one for a pilot program. Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high-profile, divisive cases.” That opinion also said that the trial judge in the case “likely violated” a federal law in changing court rules to allow the TV viewing.
The Court’s main opinion opened with a display of pique at the trial judge and the Ninth Circuit Court for moving to allow TV broadcasts of the hotly controversial trial. Here is the opening:
“We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirements of procedural regularity on others, and must follow those requirements ourselves.”
Elsewhere in the opinion, the majority suggested that the lower courts had moved with “haste” specifically to ensure televising of the trial on same-sex marriage.
On Monday, the day that trial opened, the Supreme Court had issued a temporary bar to the TV coverage plan. That was to remain in effect while the Court studied the controversy further, that order said. Because this is a Court that does not produce written opinions very rapidly, the fact that two days later — during a week busy with hearings and other matters — it issued a 17-page majority opinion and a 10-page dissent was an indication that the Court either had already made up its mind on Monday to block the TV, or at least had begun drafting opinions that would likely result in stopping the broadcasts.
Although the main opinion was unsigned, the facts that the order divided the Court 5-4, and that the dissenters were identified, indicated that Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas made up the majority. Justice Stephen G. Breyer, the only member of the Court to dissent from Monday’s order, wrote the dissenting opinion Wednesday, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and John Paul Stevens. Thus, the ruling split the Court along the customary conservative-liberal divide.
The main opinion sought to portray the Court’s action as limited in scope. Aside from saying that it was not taking any position “on the propriety of broadcasting court proceedings generally,” it said it was only blocking the streaming of video and audio of the trial proceedings to federal courthouses other than the one in San Francisco where the trial is being held. Thus, it added, it was not ruling on plans — not yet finalized — to permit broadcast on the Internet, through YouTube or otherwise, since “this may be premature.”
The ruling touched off a basic dispute within the Court over its power to take the action that it did. The majority opinion found the authority under its own Rules and under a more general “supervisory power” over lower courts. The Court said that it “may use its supervisory authority to invalidate local rules that were promulgated in violation of an Act of Congress.” The majority suggested that the trial judge had violated a law that requires public notice and a time to comment before federal court rules may be changed.
Prior to Wednesday’s decision, the only entity within the federal judiciary that had tried to stop the TV broadcasts of the trial was the U.S. Judicial Conference, through two of its officers, citing an anti-TV policy the Conference adopted years ago. But the main opinion of the Court conceded that Judicial Conference policies “may not be binding in the lower courts.” Even so, it added, those policies “are at the very least entitled to respectful consideration.” On Wednesday, the Court used its “supervisory authority” to make the anti-TV policy binding at least in this one instance.
The dissenters on Wednesday directly questioned whether the Court had the authority to block the broadcasting plan. Justice Breyer wrote that the new ruling was a move to “micromanage district court administrative procedures in the most detailed way.” He added that “it is inappropriate as well as unnecessary for this Court to intervene,” and went on to argue that there were other entities within the U.S. judiciary that should be handling such matters, “not this Court.”
Contending that the move was without precedent, Breyer wrote: “I have not been able to find any other case in which this Court has previously” intervened in such matters of local court administration. He quoted a comment made in an earlier case by Justice Scalia, saying “I do not see any basis for any direct authority to supervise lower courts.”
The majority and dissent, of course, disagreed fundamentally on whether the Prop. 8 proponents had at this point made the case for even a temporary order to block the televised viewing outside the San Francisco federal courthouse. The majority found strong support for the claim, and the dissenters found none.
One rather clever thrust by the majority was to use a quote from Washington lawyer Theodore B. Olson to bolster its conclusion that witnesses appearing in the Prop. 8 trial might well face harassment or threats if they were shown testifying. Olson is one of the lead lawyers challenging the California ban on same-sex marriage; the challengers supported broadcasting of the trial, and Olson was directly involved in the challengers’ opposition to any Supreme Court order blocking TV. Olson had referred to the risk of reprisal to Prop. 8 supporters in a filing he made in a campaign finance case, pending at the Court; the brief said that such threats would have a “chilling effect” on First Amendment free speech rights. That is exactly a point that Wednesday’s majority made.
(For background on the controversy over TV at the San Francisco trial, see the Prop. 8 supporters’ original application for a stay of the broadcasting, available here.)