Can Congress Mandate Cameras in the Courtroom?
In line with the post this week discussing the Michigan Law Review symposium on cameras in the courtroom, see here, I thought I would add a few more thoughts on the issue. Most commentators in the blogosphere seem to assume that Congress has the plenary power to mandate that Supreme Court arguments be televised. With some hesitation, Orin Kerr said the answer seems to be “clearly yes,” see here, and Ilya Somin.has stated that Article III, s 2, which says that the Supreme Court’s “appellate jurisdiction” shall be exercised under “such regulations as the Congress shall make,” provides the necessary constitutional hook for congressional power in this area. Even our own Marty Lederman has weighed in, arguing “that [mandating cameras in the courtroom is] well within Congress’s power,” though he recognizes that there is a “core” of judicial power that is not defeasible by statute. I am not sure of the ultimate answer to the question, but I suspect that there is more to Marty’s brief comment on the Volokh Conspiracy, see here, than at first meets the eye.
As anyone familiar with my scholarship knows, I am not a huge fan of inherent powers in most contexts. But the Supreme Court stated as early as United States v. Hudson and Goodwin (the famous case that articulated the doctrine of legality in criminal law) that certain powers inhere in a court. The most recognizable of these powers are contempt, administration of the bar, and docket management. There are others, but a dominant theme emerges: the Court must be able to, in the words of Hudson, “[e]nforce the observance of order.”
Although there are not many Supreme Court cases that have addressed the outer bounds of the “core” of judicial power, if the Court meant what it said in Hudson, then it does not seem to be huge stretch to say that the issue of cameras in the courtroom falls within that “core” of judicial power that is not defeasible by statute. After all, the Court has repeatedly held that courts have the inherent power, for example, to hold parties in contempt to maintain order.
Many of the concerns stated by the Justices about televising oral arguments appear to be related to the observance of order, and in particular keeping away extraneous disruptions to the judicial process. Now one may disagree with the reasons given by the Justices, or believe that they are pretextual, but they are not all that different from the reasons given for the other inherent powers I listed (and the Court has upheld) above. According to many of the Justices, the fear is that introducing cameras into the courtroom will adversely impact the dynamics of oral argument. As Chief Justice Roberts stated in 2005, “[t]here’s a concern (among Justices) about the impact of television on the functioning of the institution.” Justice Souter has raised the possibility that televising oral arguments would be distracting, and Justice Kennedy has questioned whether it would impact the collegiality of the Court.
All of these objections taken at face value would seem to be about “enforc[ing] the observance of order in the [C]ourt,” or at least maintaining the decorum of the proceedings. Of course, the Justices have raised a number of other unrelated objections as well, such as the fact that the Justices might lose their anonymity if the proceedings were televised. But so long as they keep their arguments to those relating to the observance of order, it seems to me that they have a plausible constitutional objection to the forced introduction of television cameras into the courtroom.
[Special thanks go to Matt Melewski, one of my students this past semester, in raising some of these points to me and for assistance with this post]
A valid pt as to keeping order as a key judicial function but the SC itself in the special prosecutor case etc. underlines how such things aren’t absolute or anything.
Other interests might override it here. Why not, ala the early Senate, not allow orals to be open at all, etc? One can see how this thing can be taken to far. Still, interesting pt.
Comment by Joe Paulson — May 28, 2007 @ 11:17 pm
Joe Paulson raises an interesting point. If Congress can mandate cameras in the court, can it also do the following?
1. force the justices to wear wigs?
2. limit the length of opinions and oral argument?
3. televise the court’s conferences and voting?
4. make the court take questions from the audience?
I could go on and on but perhaps it is best to let each branch of government establish its own internal operating procedures.
Comment by Dennis Bedard — May 29, 2007 @ 6:52 am
Dennis and Joe: Your points raise essentially my view of the issue–that is, it is a matter of line-drawing as to what Congress can do with respect to regulating the internal procedures of the Court. It seems ludicrous to think that Congress could mandate that the Justices wear wigs or require them to take questions from the audience. The ultimate question, in my view, is whether a statute requiring oral arguments to be televised is more like the examples given by Dennis or the authority over procedural rules that are ultimately vested in Congress. I just think that many scholars have too quickly reached the conclusion that Senator Spector’s legislation is constitutional.
Comment by David Stras — May 29, 2007 @ 9:33 am
A non-lawyer, non-scholar’s out-of-left-field hypothetical: if Congress passed such a law (and it weren’t vetoed, or the veto was overridden), how would any question of the law’s consitutionality arise? Third party lawsuit? How would they gain standing? Moreover, if such a question were before the courts, wouldn’t that be a nightmare scenario for the circuits and SCOTUS, wherein a court is being asked to adjudicate a conflict over a procedural law directly related to SCOTUS?
Comment by David.Huberman — May 29, 2007 @ 1:42 pm
That is an excellent question and one to which I have given a bit of thought. On the one hand, your point makes it quite important that Congress assess the constitutionality of Senator Specter’s proposal ahead of any vote.
But one way in which it could conceivably arise in litigation is if a litigant argued that the law was unconstitutional because it infringed upon his/her due process rights to a fair hearing before the Court. Of course, Senator Specter’s legislation contains such an express exception, but suppose that the Court refused a litigant’s request to invoke the exception. Under those circumstances, the litigant would arguably be aggrieved and could argue that the law is in fact unconstitutional as written. In fact, the Court, if the bill were passed and it still harbored objections to televising the proceedings, may just wish to refuse such a request in order to create standing and a potential “test” case.
Comment by David Stras — May 29, 2007 @ 2:28 pm
Thank you for the reply, Professor Stras. In the scenario you write about at the end of your second paragraph, what happens in the final appeals stage? SCOTUS has a clear conflict of interest. Is there precedent here (wrt review of cert and adjudication of the merits)?
Comment by David.Huberman — May 29, 2007 @ 3:29 pm
I’d pick up on Joe’s point, but I’d take it a step further: drawing on the same well of powers from which it supposedly has authority to impose on the court’s internal operations by forcing it to accept cameras at oral argument, can Congress force the recording of the conference, or the publication of a stenographer’s record of that discussion? Can it abolish the Conference entirely and impose some other mechanism by which its functions would be discharged? Could Congress demand that cases be decided seriatim – or for that matter, prohibit dissenting opinions? And if not, why not, if Congress’ acknowledged power to regulate the court’s docket also extends into the intimate detail of the court’s operations?
Comment by Simon Dodd — May 29, 2007 @ 3:59 pm
(please excuse me if this ends up posting twice — I first submitted it this morning and just realized that it still hasn’t appeared)
Hi David! Interesting post. I wonder, though, if you too quickly conflate inherent power with exclusive power (or, as you & Marty L. phrase the latter, indefeasible core power). I can readily buy that inherent powers include most of the things that are useful and convenient for utilizing one’s enumerated powers. But is “useful and convenient” (as manifest here in the Justices’ stated concerns that cameras might negatively impact oral argument) really enough to make the power not only inherent, but exclusive over Congress’ ability to set boundaries pursuant to its enumerated powers over the courts?
I see some parallel here (albeit not a perfect one) to arguments about executive power. I can buy, for example, that a war declaration empowers the President to engage in some domestic surveillance (on the theory that a state of war activates such inherent Article II powers). But I don’t buy that the declaration (and hence the activated inherent powers) gives the President exclusive power over the same (that is, power to act even in the face of contrary statutes) short of a convincing argument to the effect that anything short of such exclusive power would make it virtually impossible for the President to carry out his Article II functions.
Similarly, here, it seems to me that the perceived inconvenience of cameras in the courtroom is enough to give the Court the inherent power to keep them out even without explicit statutory or constitutional authority to do so. But I think that one might have to come up something more compelling than general concerns over disruption or inconvenience to demonstrate that the Court has exclusive power to make this determination in the face of a contrary statute.
Comment by Heidi Kitrosser — May 29, 2007 @ 4:00 pm
David: That is an interesting question. My guess is that with the recusal rules arguably loosened in recent years, at least as the Court interprets them (Scalia in the Cheney case), I would guess that the full Court would hear the case. In other words, I don’t think that the conflict would be so great as to require the recusal of the Justices. After all, the Court decided Marbury v. Madison, which arguably had a greater impact on the power of the judiciary (and the Supreme Court) than any other case in history.
Comment by David Stras — May 29, 2007 @ 4:46 pm
The real question is why is Arlen Specter trying so hard to be nominated to the Supreme Court? It’s shameful.
Comment by Jacques McKenzie — May 30, 2007 @ 10:23 am
At some point, the SC has to deal with issues that in some fashion apply to themselves just as Congress handles laws that apply to itself.
Consider the companion case to Marbury which involved the constitutionality of circuit riding. The justices didn’t like the practice and it directly affected them. In fact, one or two felt it likely unconstitutional. They UPHELD it all the same.
This is a good discussion, but there are two sides, which was part of my point as to line drawing. What happens if the SUPREME COURT itself refuses to allow the public or press in? The 6A speaks of “public trials” not public appeals. What if they refuse to explain themselves at all, simply voting by a show of hands?
Honestly, I think there is a constitutional interest in public trials (Richmond Newspapers in part cited the Ninth Amendment) that obligates the SC to provide at least audio for the public. I am sympthetic to the institutional concerns voiced here. I think the SC is being foolish though all the same.
Comment by Joe Paulson — May 31, 2007 @ 12:59 am
It’s a close question whether cameras in the courtroom are an “internal procedure.” When Justice Kennedy appeared before the Senate Judiciary Committee, he implored the Senators — almost begging them — not to pass this legislation. This suggests that, at least in Kennedy’s mind, he realizes Congress just might have the power to do this. He also realizes that it would probably be a PR nightmare for the Court to declare such a law unconstitutional. My guess is that if the law were passed, the Court would abide by it, much as they might resent the intrusion.
Some of the analogies suggested here are inane and unhelpful. Courts’ internal deliberations have always been private, but many modern courts do televise their public proceedings. After all, the Supreme Court shows its official face in only two settings: oral argument and the announcement of decisions. If oral argument isn’t “external,” then nothing is.
In addition, oral argument is already a highly public activity. Any ordinary citizen can attend in person; transcripts are published within hours, and are widely quoted in the media; and for important hearings, audio recordings are released shortly afterwards. Televised proceedings would make the Court’s external affairs much more widely and easily accessible, but wouldn’t fundamentally change what is already a very public part of the Court’s business.
Comment by Marc Shepherd — May 31, 2007 @ 7:57 am
Just a couple of add-ons to the last two posts (Paulson & Shepherd). I think their points very much feed into the point I made several posts up (about the difference between inherent & exclusive powers). Sure, the Court has inherent power to ban cameras in light of its view that cameras are inconvenient, distracting, etc. But given that there are lots of good arguments on the other side (it may not be so distracting when you consider how many courts function well w/cameras, etc.; there’s a public interest in open hearings, etc.), the question is begged as to whether the Court really has the constitutionally _exclusive_ power to make this determination in the face of a contrary statute passed under Congress’ enumerated powers.
Also, re. Paulson’s point, he’s right — there absolutely is a very rich caselaw on the first amendment interest in public access to trials. Whether this extends to appellate arguments and to televising is an open question, but the argument is colorable. And again, even if there’s no First Amendment right, the debate certainly informs whether the Court has the inherent power to ignore a statutory command.
Comment by Heidi Kitrosser — May 31, 2007 @ 9:08 am
even if there’s no First Amendment right, the debate certainly informs whether the Court has the inherent power to ignore a statutory command.
No, it doesn’t. If there’s no First Amendment right to have Supreme Court oral argument televised live (I don’t see the word “television” in my copy of the Constitution), then there isn’t any basis upon which Congress can pass the rule. Since it’s the bill’s impetus is Arlen Specter’s deranged rage at the Court and his resentment over never having been nominated to it, the basis is this “statute” is raw animus, which fails the rational-basis test.
Comment by Jacques McKenzie — May 31, 2007 @ 10:51 am
Heidi: I apologize for not responding to your point sooner. There is certainly a question as to whether the power is merely inherent, or whether it is also exclusive. It seems to me under the case law though that Congress could not pass a statute, for example, barring a court from using its contempt powers. That is within the “core” of judicial power that is not defeasible by statute. There is also a suggestion in some of the other cases that “core” inherent powers are exclusive to the judiciary. I guess the question is whether in a close case, such as television cameras at the Supreme Court, the power is merely inherent or whether it is also exclusive so that any actions taken by the Congress on that issue could be deemed void.
Comment by David Stras — May 31, 2007 @ 1:32 pm
Jacques McKenzie is setting too much store by his First Amendment and “rational basis” arguments.
Should Congress pass this law, it would be doing so under its powers under Article III, Section 2 (quoted in the main post). The Constitutional question, should the Court decide to reach it, would be whether televised proceedings fall within the reasonable ambit of “such regulations as the Congress shall make.”
Senator Spector may be annoyed at some of the Court’s recent rulings, but that’s not what the statute says. And it’s well-established law that when the statute is clear, the Court does not question legislators’ motives for voting for it. Arlen Spector alone can’t pass this bill. It requires at least 50 other senators, 218 house members, and the president, each of whom could have his or her own reasons for supporting the bill.
There clearly are many rational reasons for wanting Supreme Court arguments to be televised, even if you don’t like Senator Spector’s reasons.
Comment by Marc Shepherd — May 31, 2007 @ 3:42 pm
That is a nice try, but I haven’t heard any of these “many rational reasons” aside from Senator Specter’s personal animus and resentment, and the animus of Coloradan legislators certainly came into play in Romer v. Evans despite the fact that Amendment 2 would have no effect on the application of the Equal Protection clause to the state of Colorado. In other words, in the case of a symbolic law that accomplishes nothing and offends no legal right whatsoever, animus is not enough. Here, you have a majority of the Justices themselves who do not want the law. I have news for you, Marc: 5 is greater than 0.
As for your statement that “It requires at least 50 other senators, 218 house members, and the president, each of whom could have his or her own reasons for supporting the bill”, I will take this as a concession that we may investigate the hypothetical motives of public officials. In any event, I am not referring to hypothetical motives of a legislator’s cast vote, I am referring to public statements by Arlen Specter that have been reported in the press. Those statements expound upon the basis and rationale for the law. Indeed, Arlen Specter, or one of his aides, made available to SCOTUSblog and advance text of the bill, for discussion purposes, before it was submitted, just check the archives. So his public statements certainly are relevant as part of the legislative history of the bill. Unless you are a textualist who rejects legislative history, I do not see what your argument is that we should ignore Senator Specter’s profound animus toward the Supreme Court or his political machinations to get on it.
As for this — “The Constitutional question, should the Court decide to reach it, would be whether televised proceedings fall within the reasonable ambit of “such regulations as the Congress shall make.” — I would note that no matter the provision of the Constitution under which the legislation falls, it still must have a rational basis. As there is no precedent stating that Congress may order the Supreme Court to subject itself to televised recordings, there is no reason why the legislation would not be subject to attack. It just begs the question to say “Well, it’s a regulation.”
Comment by Jacques McKenzie — May 31, 2007 @ 4:27 pm
Jacques, there have been many prior posts, with links to various published articles, documenting the benefits of televising oral arguments. Since you can read them yourself, I won’t bother to summarize them here.
To be sure, there may also be drawbacks of televising oral arguments. But Congress isn’t prohibited from passing laws that have drawbacks. Most laws have drawbacks. “Rational basis” is a pretty low hurdle for any law to clear. I would be surprised if, after you have read the literature, you still believe that there is no rational basis for a legislator to vote for the bill–bearing in mind that “rational basis” doesn’t mean everyone agrees with it.
Although I am not a textualist, even the most liberal justices generally will not look at legislative history where the statute is clear and unambiguous — as this proposal clearly is. (Even if they did, Specter’s language — merely the reason why one legislator supports the bill — is legislative history of the weakest kind, because it doesn’t express the sense of the Congress at any point in time. It merely expresses the sense of one person.)
Comment by Marc Shepherd — May 31, 2007 @ 5:24 pm
If you looked at my commentary on Arlen Specter’s poorly drafted bill, you would see that I do not think it is clear and unambiguous. I think it is vague and easily malleable. As for your many law review articles: law review articles are not a part of the legislative history of this bill, which has yet to reach the floor. Arlen Specter’s public statements are all we have.
I would also note that benefits do not equal a rational basis. There certainly was a benefit to Amendment 2 in Colorado; it meant a lower budget for the state. Adding another interest group to the state constitution meant increased expenditures and litigation costs. That benefit, though sizeable and shared equally by each and every taxpayer in the state, was not a rational-basis that outweighed the animus that triggered the Amendment.
Your argument reduces to the fact that some law professors have conjured up some hypothetical post hoc justifications for the law. While the rational-basis test may be sufficed by post hoc hypothetical justifications in the ordinary case, that is not true in the case of a bill whose true impetus was animus, nor is it the case that a few law professor’s opinions render valid a law. If that were so, gay marriage is guaranteed by the federal Constitution. I could point you to a few law review articles on that, too. Oh, yeah, and the death penalty is forevermore unconstitutional.
Comment by Jacques McKenzie — June 1, 2007 @ 3:05 am