I should add that I’m not saying this is my interpretation – to my mind, “shall” would seem to be an imperative, not an “as you please.” None-the-less, the Court seems to have taken a different view. In a case challenging this act, the presumption of constitutionality that inheres to an act of Congress – a presumption that stems from the notion of respect for a co-ordinate branch of government – is likely to be balanced in equipoise against the observation that the bill in question is undoubtedly an act of disrespect for a co-ordinate branch of government on the part of Congress. Combine these considerations with the court’s own sense of self-preservation, and all that is needed is a rationale to strike down the bill; the Hecht formula provides that rationale.

I believe Justice Scalia disagrees with you on the meaning of the word “shall”. During oral argument in Booker, there was an exchange between Breyer and Clement regarding the meaning of shall. At the end of that discussion we find:

BREYER: All right, I have thought of one thing that might be wrong. (Pause for laughter) So I’ll ask you about it, if you want.

SCALIA: Could it be that “shall” does not mean “may”? Right?

Also, the text of S.1768 does more than you suggest. It literally says, “the SUPREME COURT SHALL PERMIT…” In that context, it’s requiring the Court to allow coverage.

If the meaning of the word “vote” in the bill resembles the word “veto” as it is used in other contexts, then that’s because the bill says something SHALL be allowed (that is the default set of circumstances), unless the Court steps in and says otherwise based on due process grounds.

Hasn’t the court, though, said that “shall” will not necessarily be construed to say “must”? Bryan Garner cites a dozen cases to explain why legal draftsmen should deprecate “shall” (see B. Garner, LEGAL WRITING IN PLAIN ENGLISH at pp.105-6). For example, in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), Justice Ginsburg for the Court said:

Though “shall” generally means “must,” legal writers sometimes use, or misuse, “shall” to mean “should,” “will,” or even “may.” See D. Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 402-403 (1992) (”shall” and “may” are “frequently treated as synonyms” and their meaning depends on context); B. Garner, Dictionary of Modern Legal Usage ___ (to be published, 2d ed. 1995) (”[C]ourts in virtually every English-speaking jurisdiction have held – by necessity – that shall may mean may in some contexts, and vice versa.”). For example, certain of the Federal Rules use the word “shall” to authorize, but not to require, judicial action.

And in Cairo & F R Co. v. Hecht, 95 U.S. 168 (1877), the Court held that “the word ’shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.” In the event of doubt as to whether the use of “shall” in S.1768 can be construed “to mean ’should,’ ‘will,’ or even ‘may,’” don’t we therefore have to ask whether “a contrary intention is manifest”? If that is the test, consider that S.1768 declares its intent “[t]o permit the televising of Supreme Court proceedings” – not to mandate, not to require, but to permit.

I think you miss the point entirely. The court must have some process to determine when the broadcasting goes forward. It can move the timing of that process to whenever it wants. Your default for broadcasting could mean broadcasting 30 years from now. I don’t see how that is much of a default if no one gets to see the broadcasting in a timely manner. There is no default as to time, as much as you try to fudge one.

the bill says something SHALL be allowed (that is the default set of circumstances), unless the Court steps in and says otherwise based on due process grounds.

Again, you seem to miss the point entirely. So what it says “shall”? It also says “unless”. Which has more weight, in practice? It depends how often claims are asserted that result in banning broadcasting. If such claims win 90% of the time, then “unless” has more force than “shall”. It’s an empirical question. We don’t have any empirical data. You can’t logically conclude anything either way: yet you call that fallacy of ignorance “reasonable”.

Do you really think Congress could do as you suggested earlier regarding foreign law?

Why not? It’s a “Regulation”.

And more importantly, do you think it would really change the outcome of those decisions.

Sure. I think many Justices are open-minded as to what they find in foreign law, not close-minded and simply looking for justification for prejudices. The open-mindedness is the problem.

It does not matter if the Court decides to hold an official vote each time, or whether it decides to have a situation similar to cert grants where a case will only be discussed if a justice is interested in it. The only thing that matters is that absent a declaration from the court otherwise, the coverage will be permitted. That’s clearly a reasonable interpretation of the text. It certainly sounds like a bias toward coverage to me, but we will agree to disagree on that.

In any event, we both agree that the bill is junk. If it does become law, I will be shocked and dismayed.

I am curious about one thing though. Do you really think Congress could do as you suggested earlier regarding foreign law? And more importantly, do you think it would really change the outcome of those decisions. I viewed Rasul, Roper, Lawrence, etc., as really poor decisions mainly because I felt that the outcome was picked first and the reasoning second. If my hunch is correct, then wouldn’t the Court have simply substituted some other babble for the foreign law references?

I was speaking apart from the bill–more in the theoretical.

I tend to agree that Congress may be overstepping its bounds by encroaching on the procedures of the Court. They can certainly restrict or (if they so desire) eliminate the Courts appellate jurisdiction but putting their grubby political hands on their procedures is probably not the best way to win friends and influence people in the judiciary.

From what I can tell, most of the Justices currently seated are not fundamentally opposed to televised oral arguments. Most have some concerns that with a little bit of finesse and some fancy technology could be sufficiently addressed.

I would even settle for audio recorded oral arguments for all sessions, a la the Oyez Project. Practically speaking, if they are going to release a written transcript, why not also release an audio recording as well?

Mr. Bedard: I, for one, doubt Congress could require the television broadcast of Cabinet meetings as they are not, by tradition, open to the public.

The best argument I’ve heard against the broadcast of oral arguments was posed by Justice Scalia. He supported only gavel-to-gavel broadcasts, as 15-second outtakes on the news could such a way to misinform the public (there is a Washington Post article from May 2, 2005 that details this–however, not knowing the HTML tag usage policy here, I won’t include the link).

First, as am empirical matter, we have no idea how many litigants who would successfully claim they couldn’t be exposed to the cameras for due process reasons, because this is an entirely new regime that has not been empirically tested — so we don’t even know if there is a statutory presumption that sets a default one way or the other. Do you see any legislative history on the matter? Any Congressional findings? I do not. Therefore, there is NO reason to presume there is a bias toward coverage. The text of the bill is absolutely silent on what is likely to occur under its administration. If only Sens. Levin and Kyl were to submit amici.

Second, in light of point one, your interpretation — that because the “default” is coverage, the term “vote” should be interpreted as “veto” — is without basis. It does not say “veto” — it says “vote.” Any coverage would follow THE VOTE. Nothing in the bill prevents the vote from being held thirty years after oral argument is held. The broadcasting can occur then. The question is not whether “televised coverge” includes both taping and broadcasting: I never argued it does not. But the bill is silent as to whether the two must be contemporaneous. Congress is not dumb. It did not say “live coverage”. It did not say “taping and broadcasting at the same time”. It left no legislative history, no Congressional record — it left this up to the discretion of the Court. Good. The Court can split the taping and thr broadcasting and yet still fulfill the “televised coverage” requirement … in any time frame it sees fit. Congress knows how to set a time limit, right? Or are we imputing utter stupidity to the drafters of this bill?

“The specifics of voting would be left up to the Court, but whatever method it decided upon, it would decide with the understanding that coverage would proceed unless it stepped in to block it.”

The specifics could be — we tape now and we broadcast 30 years later. So long as there is televised coverage at some point in time, it’s all gravy. Fine. Not “indefinite”. But long enough for interest in the case to dwindle to nothingness and for the bill to have no practical impact.

A reasonable interpretation of the bill would not allow indefinite postponement of broadcasting. “Television coverage” is often used to refer both to the taping and the broadcasting of an event. The default is coverage, not no coverage, so broadcasting would automatically proceed absent a decision by a majority of the justices that television coverage would violate due process in a particular case. The bill doesn’t even say the Court has to vote at all. The specifics of voting would be left up to the Court, but whatever method it decided upon, it would decide with the understanding that coverage would proceed unless it stepped in to block it.

Of course, a big question left by this bill is whether simply having one court-approved camera would fulfill the coverage requirement. I can’t imagine Congress would want CNN, C-SPAN, etc. to have their cameras and reporters in the room, but either way, the bill is way too vague in that regard.