by Matt Barr

My Article can beat your Article

Prof. Althouse started an interesting discussion the other day. Sen. Specter has introduced a bill which would televise Supreme Court oral arguments so long as a majority of Justices do not find that cameras should be barred in the particular case. He said in part:

The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. Because the Supreme Court of the United States holds power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual "super legislature," the public has a right to know what the Supreme Court is doing. And that right would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of the Court's decisions....

[T]he Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings.

The question, broached by Prof. Althouse and mulled over by her commenters, is whether this is a constitutional exercise of Congress' power:

I would very much like to see the oral arguments on television, but I don't think Congress ought to be imposing it on the Court. At least two of the justices -- Scalia and Souter -- have strongly opposed cameras in the Supreme Court. I should think there is a decent argument that this would be unconstitutional, violating separation of powers.

To my disappointment, she doesn't elaborate. Here's what I said in the comments, revised and extended:

I think Congress certainly can grant media the right to televise or video record proceedings. The judicial power of the United States is vested in the Supreme Court, and Specter's bill lets the Justices bar cameras in a particular case where that judicial power is implicated. The judicial power of the United States doesn't seem to me to include the power to bar cameras.

One commenter wonders whether Congress couldn't also force the President to televise cabinet meetings. But how and with how much candor the President conducts meetings is a deterimination based on the exercise of executive power, which is vested solely in the President. I think the Court could reasonably determine -- that is to say, we and Congress would defer to this determination if made -- that its judicial power was best exercised when oral arguments are held in private. But proceedings are already open to the public, and indeed it's been English and American tradition forever that oral arguments in appellate courts are open to the public.

I think Congress could certainly require the Supreme Court building to be accessible to disabled spectators. It probably already does (it's not important enough to check). Granting media the right to videorecord and/or broadcast oral arguments is simply making them accessible to spectators who can't or choose not to be physically present.

Because Specter includes an "out" in particular cases where the exercise of judicial power mandates discretion, I think the bill is a proper exercise of Article I authority. Congress can't remove a Justice without impeachement proceedings and can't lower his compensation, but beyond those express prohibitions, it would seem to me Congress can tell the Court to do whatever it wants -- provided it doesn't encroach on its judicial power.

I have argued that if someone's going to remove Christian symbols from courthouses it could and should be the applicable legislature. I think they could certainly do that, and I think Congress could permit media to videorecord or broadcast oral arguments.

What would make this exceedingly interesting is if the bill passed into law and the Court refused to comply, citing separation of powers, hopefully with more explanation than Prof. Althouse. But I think they'd be in the wrong.

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