Televising the Court?
The Senate Judiciary Committee on Thursday approved for Senate consideration a bill that would direct the Supreme Court to permit television coverage of its public sessions. The bill also seeks to dictate what the Court would have to do to keep the cameras out case by case. It raises interesting separation-of-powers questions.
The text of the bill can be found here. A statement by the C-Span cable network about the Committee’s action is here.
by a vote of the majority of justices
A vote when? Because if it is a vote “at a meeting of the Justices scheduled to begin at time X” and such a meeting is scheduled to begin at 8:00 a.m., but the only person there is the Chief, does that constitute a quorum, and can the Chief then vote (as a majority of Justices there) to ban cameras for any particular case? And why must the Justices be limited to banning cameras solely for due process reasons? It doesn’t work that way in other federal courts.
Comment by Commentator — March 30, 2006 @ 7:35 pm
I think that the bill exhaustively documents all of the good arguments in favor of TV cameras in the Supreme Court.
Comment by Simon — March 30, 2006 @ 11:21 pm
I think “a vote of the majority of the Justices” means a vote of the majority of the Justices. It’s not that complicated.
Comment by Steve M — March 30, 2006 @ 11:24 pm
Yes, Steve M, but Congress gets to make exceptions — and exceptions function against a general background of what is customary; that’s why each new amendment to one Civil Rule doesn’t overrule the entire Federal Rules of Civil Procedure by implication. The question is what procedures operate in general in the Court that the “majority vote” is an exception to — the bill is silent as to the timing, who does the counting, the manner of the voting (cast ballots? raised hands? rocks, paper, scissors?), what to do in the case a Justice is recused and there is a tie vote, whether a new vote is required if a case is DIGed and then comes back before the Court, etc. All those unanswered questions either make this bill unconstitutional for vagueness or render it very easy to elude, not to mention the fact that it doesn’t seem anyone has standing to challenge the failure to vote. Indeed, how does one go about proving such as case? If one uses the intent of teh vote standard, all the Justices need do is try to vote, i.e., think of voting without doing it. You may say that it is clear what the bill requires, but it clearly is not. It reminds me of Senator Specter’s mention of Scottish law…
Comment by Commentator — March 31, 2006 @ 1:31 am
Let me give a good hypo: the bill doesn’t say the television coverage must be realtime and there is no outer time-limit on the vote, so there is no reason why the Justices couldn’t permit taping, postpone the vote until next year, and upon voting next year release the taping for broadcast. See what I mean?
Comment by Commentator — March 31, 2006 @ 1:42 am
Televsion coverage? Does that mean any TV station has a right to put a camera in the courtroom? What about the now ubiquitous internet? Why not require live coverage available through the court’s website? Would that satisfy the law? And just off the top of my head, without researching the issue, there is something oddly uncomfortable about Congress micro managing the affairs of another branch of government. Could Congress authorize the president to televise all cabinet meetings? There is something inherent in the constitution that forbids this type of meddling.
Comment by Dennis Bedard — March 31, 2006 @ 7:36 am
I have not researched or “thought deeply” about it, but it just seems to me that this would raise some separation of powers issues. The Court is, after all, the “top” of a separate and coequal branch of government. Could Congress tell them what time of day to start arguments, how long it must allow the parties to argue, that decisions must be read in full from the bench, etc, etc?
Comment by tabman — March 31, 2006 @ 11:20 am
Well, Congress and the Supreme Court share “the judicial power,” and Congress can make “Exceptions”.
Comment by Commentator — March 31, 2006 @ 11:29 am
This seems like a very bad idea. There has been a basic, fundamental understanding for many years that the internal workings of any one branch are up to that branch, and that branch alone, to handle. This applies whether the issue is the filibuster, confidentiality of Presidential meetings, or the oral argument schedule. The Court has found almost all practices related to the internal workings of the Congress to be either non-justiciable or constitutional, so for Congress to even think of forcing the Court to adapt to its whim in this situation is just disgusting.
Comment by CDebateAdmin — March 31, 2006 @ 11:37 am
Commentator,
Congress can strip the Court of jurisdiction in certain cases, it can dissolve the lower federal courts at its whim, but since when has it been understood that it can micromanage the Court?
Comment by CDebateAdmin — March 31, 2006 @ 11:43 am
Congress and the Supreme Court share the judicial power? I bow to greater wisdom and knowledge, but though Congress has authority over setting jurisdiction, I thought “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” precluded exercise of judicial power by Congress. But I may be missing something.
Comment by tabman — March 31, 2006 @ 11:48 am
I never said it could, CDebateAdmin! Look above for my long-winded and smug attacks on the vague, ambiguous, unenforceable and incompetently drafted bill!
I just noted there was a textual basis in the Constitution for Congress making rules that apply to the Court. I never said it was persuasive to me as justification of this bill.
This bill is clearly a piece of trash. But, then, so was Rasul v. Bush. So was Roper v. Simmons, for that matter. I would have no problem, on the other hand, with Congress passing that bill to limit the Justices’ usage of foreign law. Does that make me a hypocrite? If so, why? If not, why not?
Comment by Commentator — March 31, 2006 @ 11:53 am
“Share”? “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
Comment by Simon — March 31, 2006 @ 11:54 am
The text of the bill is particulary disturbing:
“The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”
So, in other words, not only is the default to permit coverage, but the Court can’t say no coverage for just any reason. It must find that allowing TV coverage in a particular case would endanger due process for at least one of the parties. That’s not going to happen very often, if at all, so, in practice, we can say that this proposal would force the Court to allow coverage in virtually all cases.
Is this idea constitutional? Perhaps. It’s borderline constitutional in my book. Is it a good idea? No, it’s absolutely one of the worst ideas I’ve heard suggested in recent years regarding the operation of the Court.
Comment by CDebateAdmin — March 31, 2006 @ 11:55 am
I understood that it has authority to circumscribe the Supreme Court’s jurisdiction, not expand or more generally set it: “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make“
Comment by Simon — March 31, 2006 @ 11:59 am
Tabman, you really shouldn’t wade into interpreting Art. III without reading all of it.
Section 1, which you quote, certainly vests the “judicial Power” in the Supreme Court and any inferior courts that Congress decides to create.
Section 2 then describes the extent of the “judicial Power”, and notes that Congress can make “Exceptions” and “Regulations” to it. What, precisely, “Exceptions” and “Regulations” means is the subject of debate. What is not up for debate is that section 2 is a part of Art. III. One could reasonably argue that this bill is within the scope of Congressional “Exceptions” or “Regulations”.
Comment by Commentator — March 31, 2006 @ 12:03 pm
With all due respect, Simon, you are begging the question. Look at the number of commas. The text is amenable to a number of different reasonable readings (each with its own justifiable claim on tradition); the caselaw is not decisive on any particular reading; the question is open: just check the law reviews, or a Federal Courts casebook!
Comment by Commentator — March 31, 2006 @ 12:06 pm
I guess one could reasonably argue its within Article III (the power to require the Supreme Court to televise–and I had read all of the article); it simply never had occurred to me that “under such regulations” referred to anything other than “appellate jurisdiction” (”the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make”) and not to the administration of the core functions of the Court. Again, maybe it could be reasonably argued; I would’t read it that way—and I think its a bad idea in any event (not necessarily the televising of arguments, but not leaving that decision to the Court).
Comment by tabman — March 31, 2006 @ 12:16 pm
That’s not going to happen very often, if at all, so, in practice, we can say that this proposal would force the Court to allow coverage in virtually all cases.
Not true. It does not say live/realtime. It does not say when the vote must be held. If the coverage were live, then the vote would have to be before the start of oral argument. But it simply says televised. Which means taping of oral argument could occur and the vote could occur at any time later on. Which means the Court can delay the broadcast of any “televised coverage” indefinitely.
Comment by Commentator — March 31, 2006 @ 12:17 pm
Tabman,
I agree it is a terrible idea. I was just pointing out that one can’t necessarily slam-dunk the bill with Art. III.
Comment by Commentator — March 31, 2006 @ 12:20 pm
I understand your point, Commentator, but let me offer a different view.
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.
Comment by CDebateAdmin — March 31, 2006 @ 12:53 pm
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.
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.
Comment by Commentator — March 31, 2006 @ 1:37 pm
And how would the Court know whether it wanted to vote if it didn’t perform some sort of determining-whether-we-want-to-vote ritual?
Comment by Commentator — March 31, 2006 @ 1:39 pm
And is a closed circuit television “televised” under the bill? Maybe just another room in the courthouse for people who couldn’t get seats. With tapes stored in a vault for 50 years after the oral argument.
Comment by Commentator — March 31, 2006 @ 1:45 pm
Just so you understand the importance of my second to last comment: the “determining-whether-we-want-to-vote” ritual could be located in time after the oral argument, even if no vote is held. (Though I consider abstaining to be an “act” of voting.)
Comment by Commentator — March 31, 2006 @ 1:53 pm
The Court’s open arguments should be televised live, much like the open sessions of Congress are televised. As all oral arguments are open to the public, I’m cloudy as to why a live television feed would endanger the due process rights of any party.
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).
Comment by Chase Tettleton — March 31, 2006 @ 1:58 pm
Chase: It just doesn’t say “live”. That you need to use the word “should”…and, in any event, Congress binding itself is one question; Congress binding the Supreme Court is another: why should internal Congressional rules and procedures be precedents for what the Supreme Court’s internal rules and procedures are? It makes perfect sense that a representative body have live floor debates. The Supreme Court need not even have oral arguments; not to mention it isn’t a representative body — it’s independent from politics (hold laughter, please).
Comment by Commentator — March 31, 2006 @ 2:06 pm
Commentator:
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?
Comment by Chase Tettleton — March 31, 2006 @ 2:17 pm
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.
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?
Comment by CDebateAdmin — March 31, 2006 @ 2:21 pm
The only thing that matters is that absent a declaration from the court otherwise, the coverage will be permitted.
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.
Comment by Commentator — March 31, 2006 @ 2:55 pm
Like you, I think this bill is junk; but I am not concerned if it becomes law because it is not, technically, law. It is pure discretion.
Comment by Commentator — March 31, 2006 @ 3:05 pm
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:
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.
Comment by Simon — March 31, 2006 @ 6:31 pm
Simon,
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.
Comment by CDebateAdmin — March 31, 2006 @ 7:12 pm
Of course, you were referring to the stated intent, while I cited the other text. However, the text you cited is made clear by the SUPREME COURT SHALL PERMIT text that I cited. (Sorry, that was probably obvious in my previous post, but I do prefer to state the obvious, just to make sure there is no confusion.)
Comment by CDebateAdmin — March 31, 2006 @ 7:41 pm
CDebateAdmin,
I disagree, given that it is the meaning of the word “shall” that is at issue - your approach seems a little circular. As you note, the text says that the Court “shall permit” cameras, but per Hecht, “the word ’shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.” In determining whether there is a manifest intention to the contrary, it is reasonable to consider other material in the bill (indeed, there is little else one can consult), noscitur a sociis. Since the bill neglects to supplement its active ingredient with any findings of fact or additional materials, the only other material we can review is the statement of purpose, which as I previously mentioned is “[t]o permit the televising of Supreme Court proceedings.” The question, then, becomes: if “shall” is to be construed as something less than an imperative unless there is clear evidence that it is intended as such, does the statement that the bill is intended to permit rather than to require establish clear intent to use shall as an imperative? If there is doubt - and I think there is clearly doubt - the matter would be resolved per Hecht as holding that “shall” confers discretion, not demands compliance.
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.
Comment by Simon — March 31, 2006 @ 8:19 pm