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.

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.)

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.”

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.

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.

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.

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.

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.

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.

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.